Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase Agreement, as applicable, in respect of any Mortgage Loan 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 NIMS 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 cure such defect or breach within 90 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or cure such defect or breach in all material respects during such period, the Servicer shall use commercially reasonable efforts to attempt to enforce the Originator’s obligation under the Mortgage Loan Purchase Agreement and notify the Originator 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(e)); provided, however, that the 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 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the 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 (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 45 days thereafter, shall review such documents as specified in Section 2.02 and deliver, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit 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 Servicer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator 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 NIMS Insurer and the 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 NIMS Insurer and the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “Substitution Adjustment”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the 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 Mortgage Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “prohibited transactions” under Section 860F(a)(I) of the Code or on “contributions after the startup date” under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (Soundview Home Loan Trust 2006-Opt1), Pooling and Servicing Agreement (Soundview Home Loan Trust 2006-Opt2), Pooling and Servicing Agreement (Soundview Home Loan Trust 2005-Opt4)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 and the Master Servicer of such defect, missing document or breach and ~~the Servicer shall~~ request that the Originator deliver such missing document or ~~that the Originator~~ cure such defect or breach within 90 120 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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 90 120 day period (subject to Section 2.03(e)); provided, however, that the 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 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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~~ 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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,~~ 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 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. (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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 ~~45 days~~ ten Business Days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Master Servicer and the NIMS Insurer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Master Servicer and the NIMS Insurer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The ~~Depositor~~ Originator shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer ~~and the 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 NIMS Insurer and the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator 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”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each such Qualified 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 Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Master Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Master Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “prohibited transactions” under Section ~~860F(a)(I~~860F(a)(l) of the Code or on “contributions after the startup date” under Section ~~860G(d)(I~~860G(d)(l) of the Code or (b) any 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~~. (e)~~ . Upon discovery by the ~~Depositor~~Originator, the 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~~parties. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2005-2), Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2005-5, Asset-Backed Certificates, Series 2005-5), Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2006-1 Asset-Backed Certificates, Series 2006-1)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the ~~Mortgage Loan Purchase Agreement, as applicable,~~ Master Agreement in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan or the interest therein of the ~~Certificateholders~~Noteholders, the Indenture Trustee ~~(or the Custodian on its behalf)~~ shall promptly notify the ~~NIMS Insurer and the Servicer~~ Originator of such defect, missing document or breach and ~~the Servicer shall~~ request that the Originator deliver such missing document or cure such defect or that the Originator cure such ~~defect or~~ breach within 90 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or cure such defect or if the Originator does not cure such breach in all material respects during such period, the ~~Servicer~~ Indenture Trustee shall ~~use commercially reasonable efforts to attempt to enforce the Originator’s obligation under the Mortgage Loan Purchase Agreement and~~ notify the Originator 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(e)); ~~provided~~provided that, ~~however~~in connection with any such breach that could not reasonably have been cured within such 90 day period, ~~that~~ if the ~~Servicer~~ Originator has commenced to cure such breach within such 90 day period, the Originator shall ~~not~~ be permitted to proceed thereafter diligently and expeditiously to cure the same within the additional period provided under ~~any obligation~~ the Assignment Agreement. Notwithstanding the foregoing, to ~~take any action pursuant to this paragraph unless directed~~ the extent of a breach by the ~~Depositor and provided~~Originator of any representation, ~~further,~~ warranty or covenant under the ~~Depositor hereby agrees to assist the Servicer~~ Assignment Agreement in ~~enforcing~~ respect of any ~~obligations of the Originator to repurchase or substitute for a~~ Mortgage Loan which ~~has breached a representation or warranty under~~ materially adversely affects the value of such Mortgage Loan ~~Purchase Agreement~~or the interest therein of the Noteholders, the Indenture 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 Indenture Trustee, the Indenture 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, and the ~~Trustee (or the Custodian on behalf of the~~ Indenture Trustee), upon receipt of written certification from the Servicer of such deposit, shall release (or cause the Custodian to release) to the Originator the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant hereto and the Indenture Trustee and the Custodian shall have no further responsibility with regard to such Mortgage File (it being understood that neither the Indenture 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 (other than any indemnification obligation of the Originator pursuant to the Master Agreement) against the Originator respecting such omission, defect or breach available to the Indenture Trustee on behalf of the ~~Certificateholders~~Noteholders. (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~~ Noteholders in any Mortgage Loan, the Servicer shall cure such breach in all material respects. (dc) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator delivering to the ~~Trustee (or the Custodian on behalf of the~~ Indenture Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage and the Assignment to the ~~Trustee in blank~~Indenture 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 (as described below), if any, in connection with such substitution. The Indenture Trustee (or the Custodian on ~~behalf of the Trustee~~its behalf) shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within 45 days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Depositor, the Sponsor and the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~D-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Indenture Trustee (or the Custodian on ~~behalf of the Trustee~~its behalf) shall deliver to the Depositor, the Sponsor and the Servicer a certification substantially in the form of Exhibit ~~F-2~~ D-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 the Trust ~~Fund~~ and will be retained by the Originator. For the month of substitution, ~~distributions~~ payments to ~~Certificateholders~~ Noteholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The ~~Depositor~~ Originator shall give or cause to be given written notice to the ~~NIMS Insurer and the~~ Indenture Trustee, who shall forward such notice to the ~~Certificateholders~~Noteholders, 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 ~~NIMS Insurer~~ Indenture Trustee, the Servicer and the ~~Trustee~~Custodian. Upon such substitution by the ~~Originator,~~ Originator 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~~ Assignment Agreement as of the date of substitution. . (d) For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “Substitution Adjustment”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the 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 Mortgage Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution Adjustment, if any, and the ~~Trustee (or the Custodian on behalf of the~~ Indenture Trustee), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification by the Servicer of such deposit, shall release (or shall cause the Custodian to release) to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “prohibited transactions” under Section 860F(a)(I) of the Code or on “contributions after the startup date” under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 4 contracts

Samples: Sale and Servicing Agreement (Centex Land Vista Ridge Lewisville III General Partner, LLC), Sale and Servicing Agreement (Centex Land Vista Ridge Lewisville III General Partner, LLC), Sale and Servicing Agreement (Centex Land Vista Ridge Lewisville III General Partner, LLC)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the ~~Mortgage Loan~~ Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan or the interest therein of the ~~Certificateholders~~Noteholders, the ~~Trustee (or~~ Custodian, on behalf of the ~~Custodian on its behalf)~~ Indenture Trustee, shall promptly notify the ~~NIMS Insurer~~ Originator and the ~~Servicer~~ Seller of such defect, missing document (via the Exception Report with respect to a defect, or ~~breach~~ missing document) and the ~~Servicer~~ party discovering the breach shall give prompt written notice of the breach to the other parties to this Agreement and the Originator and the Securities Administrator shall request that the Originator deliver such missing document or cure such defect or that the Originator cure such ~~defect or~~ breach within 90 30 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or cure such defect or if the Originator does not cure such breach in all material respects during such period, the ~~Servicer~~ Securities Administrator, on behalf of the Indenture Trustee shall ~~use commercially reasonable efforts to attempt to enforce~~ notify the Sponsor and the Originator of the Originator’s ~~obligation under the Mortgage Loan Purchase Agreement and notify the Originator 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 30 day period (subject to Section 2.03(e)); ~~provided~~provided that, ~~however~~in connection with any such breach that could not reasonably have been cured within such 30 day period, ~~that~~ if the ~~Servicer~~ Originator has commenced to cure such breach within such 30 day period, the Originator shall ~~not~~ be permitted to proceed thereafter diligently and expeditiously to cure the same within any additional period provided under ~~any obligation~~ the Assignment Agreement. Notwithstanding the foregoing, to ~~take any action~~ the extent the price required to be paid by the Originator for a repurchased Mortgage Loan is less than the Purchase Price, the Seller, as required pursuant to ~~this paragraph unless directed by~~ the ~~Depositor and provided, further, the Depositor hereby agrees to assist the Servicer in enforcing any obligations~~ terms of the ~~Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty under~~ Assignment Agreement, shall pay the ~~Mortgage Loan~~ difference between that amount and the Purchase ~~Agreement~~Price. 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~~ Custodian, on behalf of the ~~Trustee),~~ Indenture Trustee and upon receipt of written certification (in the form of a Request for Release hereto as Exhibit C) from the Servicer of such deposit, shall release to the Originator the related Mortgage File and the Indenture Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant hereto and the Indenture Trustee and the Custodian shall have no further responsibility with regard to such Mortgage File (it being understood that neither the Indenture 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 (other than any indemnification obligation of the Originator pursuant to the Purchase Agreement) against the Originator respecting such omission, defect or breach available to the Indenture Trustee on behalf of the ~~Certificateholders~~Noteholders. In the event that the Originator fails to comply with any of the terms of the Purchase Agreement, the Indenture Trustee, upon notice thereof from the Securities Administrator or the Master Servicer and on behalf of the Noteholders, shall enforce the obligations of the Originator to the extent such failure has a materially adverse effect on the value of such Mortgage Loan or the interest therein of the Noteholders. (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~~ Noteholders in any Mortgage Loan, the Servicer shall cure such breach in all material respects. 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 Servicer set forth in Section 2.04 which materially and adversely affects the interests of the Noteholders in any Mortgage Loan, the Master Servicer shall cure such breach in all material respects. (dc) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator delivering to the ~~Trustee (or the~~ Custodian on behalf of the Indenture Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage and the Assignment to the ~~Trustee in blank~~Indenture 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 (as described below), if any, in connection with such substitution. The ~~Trustee (or the Custodian~~ Custodian, on behalf of the Indenture Trustee) , shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within 45 days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Depositor, the Indenture Trustee, the Seller and the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~D-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the ~~Trustee (or the Custodian~~ Custodian, on behalf of the Indenture Trustee) , shall deliver to the Depositor, the Indenture Trustee, the Seller and the Servicer a certification substantially in the form of Exhibit ~~F-2~~ D-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 the Trust ~~Fund~~ and will be retained by the Originator. For the month of substitution, ~~distributions~~ payments to ~~Certificateholders~~ Noteholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator 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 ~~NIMS Insurer and the Trustee~~Securities Administrator, who shall forward such notice to the ~~Certificateholders~~Noteholders, 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 ~~NIMS Insurer~~ Indenture Trustee, the Securities Administrator, and the ~~Trustee~~Custodian. Upon such substitution by the ~~Originator,~~ Originator 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~~ Assignment Agreement as of the date of substitution. . (d) For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “Substitution Adjustment”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the 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 Mortgage Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution Adjustment, if any, and ~~the Trustee (or the Custodian~~ Custodian, on behalf of the Indenture Trustee), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification by the Servicer of such deposit, shall release (or shall cause the Custodian to release) to the Originator the related Mortgage File or Files and the Indenture Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “prohibited transactions” under Section 860F(a)(I) of the Code or on “contributions after the startup date” under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 3 contracts

Repurchase or Substitution of Mortgage Loans by the Originator. the Seller or the Depositor; Payment of Prepayment Charges in the event of breach. (a) Upon discovery or receipt of ~~written~~ notice of any materially defective document in, or that a document is missing from, a the Mortgage File or of the breach by the Originator or the Seller of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan or the interest therein of the ~~Certificateholders~~Certificateholders (in the case of any such representation or warranty made to the knowledge or the best of knowledge of the Originator or the Seller, as to which the Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made), the Trustee (or ~~the~~ a Custodian on ~~its behalf~~behalf of the Trustee) shall promptly notify the ~~NIMS Insurer~~ Originator or the Seller and the Master Servicer of such defect, missing document or breach and ~~the Servicer shall~~ request that the Originator or the Seller, as the case may be, deliver such missing document or ~~that the Originator~~ cure such defect or breach within 90 days from the date the Originator or the Seller, as the case may be, was notified of such missing document, defect or breach, and if the Originator or the Seller, as the case may be, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Master Servicer (or, in accordance with Section 3.02(b), the Trustee) shall ~~use commercially reasonable efforts to attempt to~~ enforce the ~~Originator’s obligation~~ obligations of the Originator or the Seller, as the case may be, under the Mortgage Loan Purchase Agreement ~~and notify the Originator of its obligation~~ to repurchase such Mortgage Loan from ~~the Trust Fund~~ REMIC I at the Purchase Price within 90 days after the date on which the Originator or ~~prior to~~ the ~~Determination Date following~~ Seller, as the ~~expiration of such 90 day period~~ case may be, was notified (subject to Section 2.03(e)~~); provided~~) of such missing document, ~~however~~defect or breach, if and to the extent that the ~~Servicer shall not be under any obligation~~ Originator or the Seller, as the case may be, is obligated 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 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 the case may be, the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as the case may be, shall furnish to it and as shall be necessary to vest in the Originator or the Seller, as the case may be, 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)~~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 the case may be, may cause such Mortgage Loan to be removed from ~~the Trust Fund~~ 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(d); provided, however, the Originator 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator or the Seller, as 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 ~~against the Originator~~ respecting such omission, defect or breach available to the Trustee on behalf of the Certificateholders. (b) ~~Within~~ Subject to Section 2.03(e), within 90 days of the earlier of discovery by the Depositor or receipt of notice by the Depositor of the breach of any ~~representation,~~ representation or warranty ~~or covenant~~ of the Depositor set forth in Section ~~2.06, which materially and adversely affects the interests of the Certificateholders in~~ 2.04 with respect to any Mortgage Loan, which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Depositor shall (i) cure such breach in all material respects, (ii) repurchase the Mortgage Loan from REMIC I at the Purchase Price or (iii) remove such Mortgage Loan 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(d). If any such breach is a breach of any of the representations and warranties included in Section 2.04(a)(iv), and the Depositor is unable to cure such breach, the Depositor shall repurchase or substitute the smallest number of Mortgage Loans as shall be required to make such representation or warranty true and correct. The Purchase Price for any repurchased Mortgage Loan shall be delivered to the Master Servicer for deposit in the Collection Account, and the Trustee, upon receipt of written certification from the Master Servicer of such deposit, shall at the Depositor's direction release to the Depositor the related Mortgage File and shall execute and deliver such instruments of transfer or assignment furnished by the Depositor, in each case without recourse, as the Depositor shall furnish to it and as shall be necessary to vest in the Depositor any Mortgage Loan released pursuant hereto. (ci) ~~Within 90 days of~~ Promptly upon 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. (ii) 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 Holders of the Class P Certificates to any Prepayment Charge, the Master Servicer shall cure such breach in all material respects. If the representation made by the Master Servicer in Section 2.05(vii) is breached, the Master Servicer must pay into the Collection Account the amount of the scheduled Prepayment Charge, less any amount collected and paid by the Master Servicer into the Collection Account; and if the covenant made by the Master Servicer in Section 2.05(viii) is breached, the Master Servicer must pay into the Collection Account the amount of the waived Prepayment Charge. (d) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) ), in the case of the Originator or the Seller, or Section 2.03(b), in the case of the Depositor, must be effected prior to the ~~last Business Day that~~ date which is ~~within~~ two years after the ~~Closing Date.~~ Startup Day for REMIC I. As to any Deleted Mortgage Loan for which the Originator or the Seller or the Depositor substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller or the Depositor, as the case may be, delivering to the Trustee (or ~~the~~ a Custodian on behalf of the Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the ~~Mortgage and~~ Mortgage, the Assignment to the ~~Trustee in blank~~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~~ Shortfall Amount (as described below), if any, in connection with such substitution. The Trustee (or ~~the~~ a Custodian on behalf of the Trustee) shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ~~45 days~~ ten Business Days thereafter, ~~shall~~ review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Depositor and the Master Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 and the Master Servicer a certification substantially in the form of Exhibit ~~F-2~~ C-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 ~~the Trust Fund~~ REMIC I and will be retained by the ~~Originator~~Depositor, the Originator or the Seller, as the case may be. For the month of substitution, distributions to Certificateholders will reflect the ~~collections and recoveries in respect of~~ Monthly Payment due on such Deleted Mortgage Loan in on or before the Due ~~Period preceding~~ Date in the month of ~~substitution~~ substitution, and the Depositor, the Originator or the Seller, as the case may be, 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 ~~NIMS Insurer and the Trustee, who shall forward such notice to the Certificateholders,~~ 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 ~~NIMS Insurer and the~~ Trustee. Upon such ~~substitution by the Originator~~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~~ and, in the case of a substitution effected by the Originator or the Seller, the Mortgage Loan Purchase Agreement, ~~including~~ 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 Purchase ~~Agreement~~ Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, in each case as of the date of substitution. For any month in which the Depositor, the Originator or the Seller 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”~~Shortfall Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the ~~aggregate~~aggregate of, as to each such Qualified Substitute Mortgage Loan, of the ~~Stated~~ Scheduled Principal Balance thereof as of the date of substitution, together with one month’s 's interest on such ~~Stated~~ Scheduled Principal Balance at the applicable Net Mortgage Rate. On the date of such substitution, the Depositor, the Originator or the Seller, as 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~~Shortfall 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 certification by the Master Servicer of such deposit, shall release to the Depositor, the Originator or the Seller, as the case may be, the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Depositor, the Originator or the Seller, as the case may be, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Depositor, the Originator or the Seller, as the case may be, 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 ~~the Trust Fund~~any of REMIC I, REMIC II or REMIC III, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section ~~860F(a)(I~~860F(a)(1) of the Code or on “"contributions after the startup date” " under Section ~~860G(d)(I~~860G(d)(1) of the ~~Code~~ Code, or (b) any of REMIC I, REMIC II or REMIC III 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~~. (e) Upon discovery by the Depositor, the ~~Servicer~~Originator, the ~~NIMS Insurer~~ 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~~parties. In connection therewith, the ~~Originator~~ Originator, the Seller or the ~~Depositor, as the case may be,~~ Depositor shall repurchase or, subject to the limitations set forth in Section 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 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~~2.04, 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~~Originator or the Seller, 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~~ Depositor, the Originator or the ~~Originator~~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. (f) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Park Place Securities, Inc.), Pooling and Servicing Agreement (Boardwalk Mortgage Securities Inc.)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 ~~NIMS Insurer~~ Originator and the Master Servicer of such defect, missing document or breach and ~~the Servicer shall~~ request that the Originator deliver such missing document or ~~that the Originator~~ cure such defect or breach within 90 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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(e)); ~~provided~~PROVIDED that, ~~however~~in connection with any such breach that could not reasonably have been cured within such 90 day period, ~~that~~ if the ~~Servicer~~ Originator shall ~~not be under any obligation~~ have commenced to ~~take any action pursuant to this paragraph unless directed by the Depositor and provided, further~~cure such breach within such 90 day period, the ~~Depositor hereby agrees~~ Originator shall be permitted to ~~assist~~ proceed thereafter diligently and expeditiously to cure the ~~Servicer in enforcing any obligations of~~ same within the ~~Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty~~ additional period provided 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the 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 (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 45 days thereafter, shall review such documents as specified in Section 2.02 and deliver, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit 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 Servicer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator 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 NIMS Insurer and the 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 NIMS Insurer and the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “Substitution Adjustment”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the 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 Mortgage Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “prohibited transactions” under Section 860F(a)(I) of the Code or on “contributions after the startup date” under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.49

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Option One Mort Accept Corp Asset Backed Cert Series 2000-3), Pooling and Servicing Agreement (Option One Mort Accept Corp Asset Backed Cert Series 2000-3)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 and the Master Servicer of such defect, missing document or breach and ~~the Servicer shall~~ request that the Originator deliver such missing document or ~~that the Originator~~ cure such defect or breach within 90 120 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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 90 120 day period (subject to Section 2.03(e)); ~~provided~~provided that, ~~however~~in connection with any such breach that could not reasonably have been cured within such 120 day period, ~~that~~ if the ~~Servicer~~ Originator shall ~~not be under any obligation~~ have commenced to ~~take any action pursuant to this paragraph unless directed by the Depositor and provided, further~~cure such breach within such 120 day period, the ~~Depositor hereby agrees~~ Originator shall be permitted to ~~assist~~ proceed thereafter 57 diligently and expeditiously to cure the ~~Servicer in enforcing any obligations of~~ same within the ~~Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty~~ additional period provided 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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~~ 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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,~~ 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 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. (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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 ~~45 days~~ ten Business Days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Master Servicer and the NIMS Insurer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Master Servicer and the NIMS Insurer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The ~~Depositor~~ Originator shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer ~~and the 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 NIMS Insurer and the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator 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”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each such Qualified 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 Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Master Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Master Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section ~~860F(a)(I~~860F(a)(l) of the Code or on “"contributions after the startup date” " under Section ~~860G(d)(I~~860G(d)(l) of the Code or (b) any 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. (e) Upon discovery by the ~~Depositor~~Originator, the 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~~parties. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.affected

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Option One Mort Accept Corp Asset Backed Certs Ser 2003 1), Pooling and Servicing Agreement (Option One Mortgage Accept Corp Asset-Backed Cert Se 2002-6)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 and the Master Servicer of such defect, missing document or breach and ~~the Servicer shall~~ request that the Originator deliver such missing document or ~~that the Originator~~ cure such defect or breach within 90 120 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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 90 120 day period (subject to Section 2.03(e)); provided, however, that the 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 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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~~ 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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,~~ 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 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. (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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 ~~45 days~~ ten Business Days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Master Servicer and the NIMS Insurer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Master Servicer and the NIMS Insurer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The ~~Depositor~~ Originator shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer ~~and the 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 NIMS Insurer and the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator 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”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each such Qualified 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 Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Master Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Master Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section ~~860F(a)(I~~860F(a)(l) of the Code or on “"contributions after the startup date” " under Section ~~860G(d)(I~~860G(d)(l) of the Code or (b) any 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. (e) Upon discovery by the ~~Depositor~~Originator, the 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~~parties. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Option One Mort Accep Corp Asset Backed Cert Ser 2003-6), Pooling and Servicing Agreement (Option One Mortgage Acceptance Loan Trust 2004-2)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 and the Master Servicer of such defect, missing document or breach and ~~the Servicer shall~~ request that the Originator deliver such missing document or ~~that the Originator~~ cure such defect or breach within 90 120 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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 90 120 day period (subject to Section 2.03(e)); ~~provided~~PROVIDED that, ~~however~~in connection with any such breach that could not reasonably have been cured within such 120 day period, ~~that~~ if the ~~Servicer~~ Originator shall ~~not be under any obligation~~ have commenced to ~~take any action pursuant to this paragraph unless directed by the Depositor and provided, further~~cure such breach within such 120 day period, the ~~Depositor hereby agrees~~ Originator shall be permitted to ~~assist~~ proceed thereafter diligently and expeditiously to cure the ~~Servicer in enforcing any obligations of~~ same within the ~~Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty~~ additional period provided 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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~~ 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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,~~ 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 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. (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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 ~~45 days~~ ten Business Days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Master Servicer and the NIMS Insurer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Master Servicer and the NIMS Insurer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The ~~Depositor~~ Originator shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer ~~and the 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 NIMS Insurer and the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator 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”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each such Qualified 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 Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Master Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Master Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section ~~860F(a)(I~~860F(a)(l) of the Code or on “"contributions after the startup date” " under Section ~~860G(d)(I~~860G(d)(l) of the Code or (b) any 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. (e) Upon discovery by the ~~Depositor~~Originator, the 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~~parties. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.affected

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Option One Mortgage Loan Tr Asset Backed Cert Ser 2002-2), Pooling and Servicing Agreement (Option One Mortgage Accep Corp Ast Back Certs Ser 2003-3)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 ~~NIMS~~ Originator, the NIMs Insurer and the Master Servicer of such defect, missing document or breach and ~~the Servicer shall~~ request that the Originator deliver such missing document or ~~that the Originator~~ cure such defect or breach within 90 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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(e)); ~~provided~~PROVIDED that, ~~however~~in connection with any such breach that could not reasonably have been cured within such 90 day period, ~~that~~ if the ~~Servicer~~ Originator shall ~~not be under any obligation~~ have commenced to ~~take any action pursuant to this paragraph unless directed by the Depositor and provided, further~~cure such breach within such 90 day period, the ~~Depositor hereby agrees~~ Originator shall be permitted to ~~assist~~ proceed thereafter diligently and expeditiously to cure the ~~Servicer in enforcing any obligations of~~ same within the ~~Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty~~ additional period provided 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage 47 Loan released pursuant 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~~ 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee on behalf of the Certificateholders. (b) ~~Within~~ Subject to Section 2.03(e), within 90 days of the earlier of discovery by the Depositor or receipt of notice by the Depositor of the breach of any ~~representation,~~ representation or warranty ~~or covenant~~ of the Depositor set forth in Section ~~2.06, which materially and adversely affects the interests of the Certificateholders in~~ 2.06 with respect to any Mortgage Loan, which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Depositor shall (i) cure such breach in all material respects, (ii) repurchase the Mortgage Loan from the Trust at the Purchase Price or (iii) cause such Mortgage Loan to be removed from the Trust Fund (in which case it shall become a Deleted Mortgage Loan) and substituted for by one or more Qualified Substitute Mortgage Loans by the Originator in the manner and subject to the limitations set forth in Section 2.03(d). The Purchase Price for any repurchased Mortgage Loan shall be delivered to the Master Servicer for deposit in the Collection Account, and, upon receipt thereof, the Master Servicer shall at the Depositor's direction release to the Depositor the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment furnished by the Depositor, in each case without recourse, as the Depositor shall furnish to it and as shall be necessary to vest in the Depositor any Mortgage Loan released pursuant hereto. (c) 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. (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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 ~~45 days~~ ten Business Days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Master Servicer and the NIMs Insurer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Master Servicer and the NIMs Insurer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The ~~Depositor~~ Originator shall give or cause to be given written notice to the ~~NIMS Insurer~~ Certificateholders and the ~~Trustee, who shall forward such notice to the Certificateholders,~~ 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 ~~NIMS~~ NIMs Insurer and the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator 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”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each such Qualified 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 Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Master Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Master Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator shall obtain at its own expense and deliver to the Trustee and the ~~NIMS~~ NIMs Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section ~~860F(a)(I~~860F(a)(l) of the Code or on “"contributions after the startup date” " under Section ~~860G(d)(I~~860G(d)(l) of the Code or (b) any 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. (e) Upon discovery by the ~~Depositor~~Originator, the Master Servicer, the ~~NIMS~~ 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~~parties. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 2.03(d), 49 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Asset Backed Certificates Series 2001-2), Pooling and Servicing Agreement (Option One Mort Ln Trust Asset Back Certs Ser 2001-3)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 and the Master Servicer of such defect, missing document or breach and ~~the Servicer shall~~ request that the Originator deliver such missing document or ~~that the Originator~~ cure such defect or breach within 90 120 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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 90 120 day period (subject to Section 2.03(e)); ~~provided~~PROVIDED that, ~~however~~in connection with any such breach that could not reasonably have been cured within such 120 day period, ~~that~~ if the ~~Servicer~~ Originator shall ~~not be under any obligation~~ have commenced to ~~take any action pursuant to this paragraph unless directed by the Depositor and provided, further~~cure such breach within such 120 day period, the ~~Depositor hereby agrees~~ Originator shall be permitted to ~~assist~~ proceed thereafter diligently and expeditiously to cure the ~~Servicer in enforcing any obligations of~~ same within the ~~Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty~~ additional period provided 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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~~ 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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,~~ 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 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. (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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 ~~45 days~~ ten Business Days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Master Servicer and the NIMS Insurer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Master Servicer and the NIMS Insurer a certification substantially in the form of Exhibit 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 57 respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The ~~Depositor~~ Originator shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer ~~and the 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 NIMS Insurer and the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator 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”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each such Qualified 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 Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Master Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Master Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section ~~860F(a)(I~~860F(a)(l) of the Code or on “"contributions after the startup date” " under Section ~~860G(d)(I~~860G(d)(l) of the Code or (b) any 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. (e) Upon discovery by the ~~Depositor~~Originator, the 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~~parties. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.affected

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Option One Mort Accept Corp Asset Backed Cert Ser 2002-3)

Repurchase or Substitution of Mortgage Loans by the Originator. (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, as applicable, of any representation, warranty or covenant under the ~~Mortgage Loan Purchase~~ Master Agreement or Assignment Agreement, as applicable, in respect of any Mortgage Loan 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 NIMS 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 cure such defect or breach within 90 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or if the Originator does not cure such defect or breach in all material respects during such period, the Servicer (or, to the extent provided in Section 3.02, the Trustee) shall ~~use commercially reasonable efforts to attempt to~~ enforce (in the manner set forth in Section 2.01) the Originator’s 's obligation under the ~~Mortgage Loan Purchase~~ Master Agreement or the Seller's obligation under the Assignment Agreement and notify the Originator or the Seller, as applicable, 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(e)); provided, however, that the 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 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 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 Seller, as applicable, any Mortgage Loan released pursuant 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~~ 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 ~~Originator~~ 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®~~ MERS(R) System, the ~~Originator~~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~~ Seller and shall cause such Mortgage to be removed from registration on the ~~MERS®~~ MERS(R) System in accordance with MERS’ ' rules and regulations. 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. (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 last Business Day that is within two years after the 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 and the Assignment to the ~~Trustee in blank~~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 (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 45 days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Servicer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the ~~Originator~~Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding 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~~ Servicer shall give or cause to be given written notice to ~~the NIMS Insurer and~~ the 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 ~~NIMS Insurer and the~~ Trustee. Upon such substitution by the ~~Originator~~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 all applicable representations and warranties thereof included in the ~~Mortgage Loan Purchase~~ 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”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the 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 Mortgage Rate. 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, 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 certification by the Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section 860F(a)(I) of the Code or on “"contributions after the startup date” " under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the ~~Servicer, the NIMS Insurer~~ 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 under the ~~Mortgage Loan Purchase~~ 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 or the 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) ~~In addition~~ 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 ~~foregoing~~Trustee shall promptly notify the Servicer of such breach and the Servicer shall request that the Seller remedy such breach by the Seller, to the extent ~~of a breach of~~ provided in the ~~representation of~~ Assignment Agreement, in the ~~Depositor~~ manner and within the time periods set forth in ~~Section 2.06(x),~~ the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage LoanAssignment Agreement.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Fremont Home Loan Trust 2005-1)

Repurchase or Substitution of Mortgage Loans by the Originator. (a) Upon discovery or receipt of written notice that a document does not comply with the requirements of ~~any materially defective document in~~Section 2.01 hereof, 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 Mortgage Loan~~ its Purchase ~~Agreement, as applicable, in respect of any Mortgage Loan~~ and Servicing Agreement which materially adversely affects the value of ~~such~~ that Mortgage Loan or the interest therein of the ~~Certificateholders~~Securityholders, (i) in the case of Mortgage Loan documentation that is not in compliance with Section 2.01 or is missing, the Indenture Trustee (or the Custodian on as its ~~behalf~~designated agent) shall promptly notify the ~~NIMS Insurer and the Servicer~~ Originator of such ~~defect,~~ noncompliance or missing document ~~or breach~~ and ~~the Servicer shall~~ request that the Originator deliver such missing document or ~~that the Originator~~ cure such ~~defect or breach~~ noncompliance within 90 60 days from the date that the Originator was notified of such missing ~~document, defect~~ document or ~~breach~~noncompliance, and if the Originator does not deliver such missing document or cure such ~~defect or breach~~ noncompliance in all material respects during such period, the ~~Servicer~~ Indenture Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the ~~Mortgage Loan~~ Purchase and Servicing Agreement and ~~notify~~ cause the Originator ~~of its obligation~~ to repurchase ~~such~~ that Mortgage Loan from the Trust ~~Fund~~ Estate at the Purchase Price on or prior to the Determination Date following the expiration of such 90 60 day ~~period (subject to Section 2.03(e))~~period; provided, however, if the Originator can ultimately deliver such missing document or cure such noncompliance but is not reasonably expected to be cured within such 60 day period, the Indenture Trustee shall permit the Originator an additional 30 days to deliver such missing document or cure such noncompliance provided that the ~~Servicer shall not be~~ Originator has commenced curing or correcting such defect and is diligently pursuing same or (ii) in the case of a breach of a representation, warranty or covenant with respect to a Mortgage Loan under ~~any obligation to take any action pursuant to this paragraph unless directed by~~ the ~~Depositor~~ Purchase and ~~provided, further~~Servicing Agreement, the ~~Depositor hereby agrees~~ party discovering such breach shall notify the Originator and the Indenture Trustee of such breach (with a copy of such notice provided to ~~assist~~ the ~~Servicer~~ other parties hereto) of its representation, warranty or covenant made under the Purchase and Servicing Agreement, and request that the Originator cure such breach within 60 days from the date it was notified of the breach and if the Originator does not cure such breach in ~~enforcing any obligations~~ all material respects during such period, the Indenture Trustee shall enforce the obligation of the Originator under its Purchase and Servicing Agreement and cause it to repurchase the Mortgage Loans from the Trust Estate at the Purchase Price on or ~~substitute for a Mortgage Loan which has breached a representation~~ prior to the Determination Date following the expiration of such 60 day period; provided, however, that, in connection with any such breach that could not reasonably have been cured within such 60 day period, if the Originator shall have commenced to cure such breach within such 60 day period, the Originator shall be permitted an additional 30 days to proceed thereafter diligently and expeditiously to cure the same; and, provided further, that, in the case of the breach of any representation, warranty or ~~warranty under~~ covenant made by the Originator in the Purchase and Servicing Agreement, if the Mortgage Loan or the related Mortgaged Property acquired with respect thereto has been sold, then the Originator shall pay, in lieu of the Purchase ~~Agreement~~Price, any excess of the Purchase Price over the Net Liquidation Proceeds received upon such sale. The Purchase Price for the repurchased Mortgage Loan or such other amount due shall be ~~remitted~~ deposited in the Distribution Account on or prior to the ~~Servicer for deposit in~~ next Determination Date after the ~~Collection Account, and the Trustee (or the Custodian on behalf~~ obligation of the Originator to repurchase such Mortgage Loan arises. The Indenture Trustee), upon receipt of written certification from the ~~Servicer~~ Securities Administrator of ~~such deposit~~the related deposit in the Distribution Account, shall cause the Custodian to release to the Originator the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant hereto and the Indenture Trustee shall have no further responsibility with regard to such Mortgage File (it being understood that ~~neither~~ the Indenture Trustee ~~nor the Custodian~~ shall have ~~any~~ 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 may cause such Mortgage Loan to be removed from the Trust ~~Fund~~ Estate (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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations2.04(d) below. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Indenture Trustee on behalf of the ~~Certificateholders~~Securityholders. The Indenture Trustee on behalf of the Issuer shall enforce the obligations of the Originator under the Purchase and Servicing Agreement including, without limitation, any obligation of the Originator to purchase a Mortgage Loan on account of missing or defective documentation or any such obligation of the Originator on account of a breach of a representation, warranty or covenant as described in this Section 2.04(a). Any costs and expenses (including reasonable attorneys' fees and expenses) incurred by the Indenture Trustee enforcing the obligations of the Originator under this Section 2.04(a) shall be reimbursable to the Indenture Trustee from amounts on deposit in the Distribution Accounts. (b) ~~Within 90 days~~ If pursuant to the provisions of Section 2.04(a), the ~~earlier of discovery by~~ Originator repurchases or otherwise removes from 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 Trust Estate a Mortgage Loan that is a MERS Mortgage Loan, the ~~Depositor~~ Originator will take (or shall ~~cure~~ cause the Servicer to take), at the expense of the Originator (with the cooperation of the Depositor, the Indenture Trustee and the Master Servicer), such ~~breach~~ actions as are necessary to either (i) cause MERS to execute and deliver an Assignment of Mortgage in ~~all material respects~~recordable form to transfer the Mortgage from MERS to the Originator and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS' rules and regulations or (ii) cause MERS to designate on the MERS® System the Originator or its designee as the beneficial holder of such Mortgage Loan. (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[Reserved]. (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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Mortgage Loans, such substitution shall be effected by the Originator delivering to the ~~Trustee (or the Custodian on behalf of the~~ Indenture Trustee), for such Qualified Substitute Mortgage Loan or Mortgage Loans, the Mortgage Note, the ~~Mortgage and~~ Mortgage, the Assignment to the Indenture Trustee ~~in blank~~(or the Custodian on its behalf), and such other documents and agreements, with all necessary endorsements thereon, as are required by ~~Section 2.01~~the Xxxxx Fargo Custodial Agreement (subject to the exceptions provided therein), together with an Officers’ ' Certificate ~~providing~~ stating that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment (as described below), if any, in connection with such substitution; provided, however, that, in the case of any Qualified Substitute Mortgage Loan that is a MERS Mortgage Loan, the Originator shall provide such documents and take such other action with respect to such Qualified Substitute Mortgage Loans as are required pursuant to the Xxxxx Fargo Custodial Agreement. The Indenture Trustee (or the Custodian on ~~behalf of the Trustee~~its behalf) shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans ~~and, within 45 days thereafter,~~ and shall review such documents as specified in ~~Section 2.02~~ the Xxxxx Fargo Custodial Agreement and ~~deliver~~deliver to the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, ~~a certification~~ certifications substantially in the ~~form attached hereto as Exhibit F-1 (with a copy to~~ forms set forth in the ~~NIMS Insurer)~~Xxxxx Fargo Custodial Agreement, 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 Servicer a certification substantially in the form of Exhibit 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 the Trust ~~Fund~~ Estate and will be retained by the Originator. For the month of substitution, ~~distributions~~ payments to ~~Certificateholders~~ Securityholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The ~~Depositor~~ Indenture Trustee, or the Custodian on behalf of the Indenture Trustee, shall give or cause to be given written notice to the ~~NIMS Insurer and the Trustee, who shall forward such notice to the Certificateholders,~~ Securityholders 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 NIMS Insurer and the Trustee~~Loans. Upon such ~~substitution by the Originator~~substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the ~~Mortgage Pool~~ Trust Estate and shall be subject in all respects to the terms of this Agreement and, in the case of a substitution effected by the Originator the related Purchase and ~~the Mortgage Loan Purchase~~ Servicing Agreement, ~~including~~ including, in the case of a substitution effected by the Originator all ~~applicable~~ representations and warranties thereof included in the ~~Mortgage Loan~~ related Purchase ~~Agreement~~ and Servicing Agreement, in each case as of the date of substitution. For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the ~~Servicer will determine~~ Originator shall determine, and provide written certification to the Indenture Trustee as to the amount (~~the “~~each, a "Substitution Adjustment”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each such Qualified 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 Rate. On or prior to the ~~date of such substitution~~next Determination Date after the Originator's obligation to repurchase the related Deleted Mortgage Loan arises, the Originator will deliver or cause to be delivered to the ~~Servicer~~ Securities Administrator for deposit in the ~~Collection~~ Distribution Account an amount equal to the related Substitution Adjustment, if any, and the ~~Trustee (or the Custodian on behalf of the~~ Indenture Trustee), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and ~~certification by~~ an acknowledgment from the ~~Servicer~~ Securities Administrator of ~~such deposit~~its receipt of the deposit to the Distribution Account, shall release to the ~~Originator~~ Originator, the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “prohibited transactions” under Section 860F(a)(I) of the Code or on “contributions after the startup date” under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Sale and Servicing Agreement (PHH Mortgage Trust, Series 2008-Cim2)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan ~~which~~ that 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 ~~NIMS Insurer~~ Seller, the Originator, the Servicer and the ~~Servicer~~ Trust Administrator of such defect, missing document or breach and ~~the Servicer shall~~ request that the Originator deliver such missing document or ~~that the Originator~~ cure such defect or breach within 90 60 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Servicer~~ Servicer, in accordance with Section 3.02(b), shall ~~use commercially reasonable efforts to attempt to~~ enforce the ~~Originator’s obligation~~ obligations of the Originator under the Mortgage Loan Purchase Agreement ~~and notify the Originator of its obligation~~ to repurchase such Mortgage Loan from ~~the Trust Fund~~ REMIC I at the Purchase Price within 90 days after the date on ~~or prior to~~ which the ~~Determination Date following the expiration of such 90 day period~~ Originator was notified (subject to Section ~~2.03(e~~2.03(c)~~); provided~~) of such missing document, ~~however~~defect or breach, if and to the extent that the ~~Servicer shall not be under any obligation~~ Originator is obligated 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 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 from the Servicer of such deposit, shall release to the Originator the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant ~~hereto and~~ hereto. Neither the Trustee nor the Trust Administrator shall have no any 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)~~File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the Mortgage Loan Purchase Agreement, the Originator may cause such Mortgage Loan to be removed from ~~the Trust Fund~~ 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(d~~2.03(b); provided, however, the Originator 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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~~ respecting such omission, defect or breach available to the Trustee ~~on behalf of~~ and 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 ~~last Business Day that~~ date which is ~~within~~ two years after the ~~Closing Date.~~ Startup Day for REMIC I. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and~~ Mortgage, the Assignment to the ~~Trustee in blank~~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~~ Shortfall 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 ~~45 days~~ ten Business Days thereafter, ~~shall~~ review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Depositor, the Servicer and the Trust Administrator, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Servicer and the Trust Administrator a certification substantially in the form of Exhibit ~~F-2~~ C-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 ~~the Trust Fund~~ REMIC I and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the ~~collections and recoveries in respect of~~ Monthly Payment due on such Deleted Mortgage Loan in on or before the Due ~~Period preceding~~ Date in the month of ~~substitution~~ substitution, and the Originator 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 ~~NIMS Insurer and the Trustee, who shall forward such notice to the Certificateholders,~~ 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 ~~NIMS Insurer~~ Trustee and the ~~Trustee~~Trust Administrator. Upon such ~~substitution by the Originator~~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~~ including, all applicable representations and warranties thereof included in the Mortgage Loan Purchase ~~Agreement as of the date of substitution~~Agreement. For any month in which the ~~Originator~~ Seller substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “"Substitution ~~Adjustment”~~Shortfall Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the ~~aggregate~~aggregate of, 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 will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution ~~Adjustment~~Shortfall 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 certification by the Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator shall obtain at its own expense and deliver to the ~~Trustee~~ Trust Administrator and the ~~NIMS Insurer~~ Trustee an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on ~~the~~ any Trust ~~Fund~~REMIC, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section ~~860F(a)(I~~860F(a)(1) of the Code or on “"contributions after the startup date” " under Section ~~860G(d)(I~~860G(d)(1) 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~~. (ec) Upon discovery by the Depositor, the Seller, the Servicer, the ~~NIMS Insurer~~ Trustee 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~~parties. In connection therewith, the Originator ~~or the Depositor, as the case may be,~~ shall repurchase or, subject to the limitations set forth in Section ~~2.03(d~~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 (i) by the Originator 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 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 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~~ and the ~~Custodian on behalf of the Trustee)~~ Trust Administrator shall reconvey to the ~~Depositor or the Originator, as the case may be,~~ Originator 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Salomon Bros Mort Sec Vii Sal Home Equ Ln Tr Ser 2002 Wmc1)

Repurchase or Substitution of Mortgage Loans by the Originator. (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, as applicable,~~ Agreement in respect of any Mortgage Loan 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 NIMS Insurer and the Servicer of such defect, missing document or breach and the Servicer~~ shall 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 ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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(e)); provided, however, that the 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 . If the Originator or the Seller, as applicable fails to repurchase or substitute for a such Mortgage Loan ~~which has breached a representation or warranty~~ in accordance with its obligations 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. 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 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 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~~ 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, neither the Originator nor the Seller, as applicable, may ~~not~~ substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan ~~which breaches a representation~~ that violates any predatory or ~~warranty regarding~~ abusive ~~or predatory~~ lending laws. In furtherance of the foregoing, if the Originator is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulationslaw. 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. (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 60 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 last Business Day that is within two years after the 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 and the Assignment to the ~~Trustee in blank~~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 (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 45 days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Depositor and the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 and the Servicer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the ~~Originator~~Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding 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~~ Servicer shall give or cause to be given written notice to ~~the NIMS Insurer and~~ the 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 ~~NIMS Insurer and the~~ Trustee. Upon such substitution by the ~~Originator~~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 all applicable representations and warranties thereof included in the Mortgage Loan Purchase Agreement as of the date of substitution. For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “"Substitution Adjustment”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the 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 Mortgage Rate. 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, 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 certification by the Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section 860F(a)(I) of the Code or on “"contributions after the startup date” " under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the ~~Servicer, the NIMS Insurer~~ 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Equifirst Mortgage Loan Trust 2004-3 Asset-Backed Certificates, Series 2004-3)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 NIMS 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 cure such defect or breach within 90 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or if the Originator does not cure such defect or breach in all material respects during such period, the Servicer (or, to the extent provided in Section 3.02, the Trustee) shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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(e)); provided, however, that the 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 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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~~ 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the ~~MERS®~~ MERS(R) System, the ~~Originator,~~ Originator 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~~ Seller and shall cause such Mortgage to be removed from registration on the ~~MERS®~~ MERS(R) System in accordance with MERS’ ' rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 45 days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~F-1, with 57 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 Servicer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator 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 NIMS Insurer and~~ the 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 NIMS Insurer and~~ the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “"Substitution Adjustment”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each such Qualified 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 Mortgage Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section 860F(a)(I) of the Code or on “"contributions after the startup date” " under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the ~~Servicer, the NIMS Insurer~~ 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Financial Asset Sec Corp Fremont Home Ln Tr 2003-2)

Repurchase or Substitution of Mortgage Loans by the Originator. (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, as applicable, of any representation, warranty or covenant under the ~~Mortgage Loan Purchase~~ Master Agreement or Assignment Agreement, as applicable, in respect of any Mortgage Loan 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 NIMS 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 cure such defect or breach within 90 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or if the Originator does not cure such defect or breach in all material respects during such period, the Servicer (or, to the extent provided in Section 3.02, the Trustee) shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the ~~Mortgage Loan Purchase~~ Master Agreement or the Seller's obligation under the Assignment Agreement and notify the Originator or the Seller, as applicable, 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(e)); provided, however, that the 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 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 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 Seller, as applicable, any Mortgage Loan released pursuant 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~~ 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 Originator 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®~~ MERS(R) System, the ~~Originator~~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~~ Seller and shall cause such Mortgage to be removed from registration on the ~~MERS®~~ MERS(R) System in accordance with MERS’ ' rules and regulations. 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. (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 last Business Day that is within two years after the 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 and the Assignment to the ~~Trustee in blank~~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 (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 45 days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Servicer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the ~~Originator~~Originator or the Seller, as applicable,. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding 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~~ Servicer shall give or cause to be given written notice to ~~the NIMS Insurer and~~ the 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 ~~NIMS Insurer and the~~ Trustee. Upon such substitution by the ~~Originator~~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 all applicable representations and warranties thereof included in the ~~Mortgage Loan Purchase~~ 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”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each such Qualified 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 Mortgage Rate. 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, 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 certification by the Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section 860F(a)(I) of the Code or on “"contributions after the startup date” " under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the ~~Servicer, the NIMS Insurer~~ 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 under the ~~Mortgage Loan Purchase~~ 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 or the 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) ~~In addition~~ 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 ~~foregoing~~Trustee shall promptly notify the Servicer of such breach and the Servicer shall request that the Seller remedy such breach by the Seller, to the extent ~~of a breach of~~ provided in the ~~representation of~~ Assignment Agreement, in the ~~Depositor~~ manner and within the time periods set forth in ~~Section 2.06(x),~~ the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage LoanAssignment Agreement.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Fremont Home Loan Trust 2004-2)

Repurchase or Substitution of Mortgage Loans by the Originator. the Seller or the Depositor; Payment of Prepayment Charges in the event of breach. (a) Upon discovery or receipt of ~~written~~ notice of any materially defective document in, or that a document is missing from, a the Mortgage File or of the breach by the Originator or the Seller of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan or the interest therein of the ~~Certificateholders~~Certificateholders (in the case of any such representation or warranty made to the knowledge or the best of knowledge of the Originator or the Seller, as to which the Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made), the Trustee (or ~~the~~ a Custodian on ~~its behalf~~behalf of the Trustee) shall promptly notify the ~~NIMS Insurer~~ Originator or the Seller, as the case may be, and the Master Servicer of such defect, missing document or breach and ~~the Servicer shall~~ request that the Originator or the Seller, as the case may be, deliver such missing document or ~~that the Originator~~ cure such defect or breach within 90 days from the date the Originator or the Seller, as the case may be, was notified of such missing document, defect or breach, and if the Originator or the Seller, as the case may be, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Master Servicer (or, in accordance with Section 3.02(b), the Trustee) shall ~~use commercially reasonable efforts to attempt to~~ enforce the ~~Originator’s obligation~~ obligations of the Originator or the Seller, as the case may be, under the Mortgage Loan Purchase Agreement ~~and notify the Originator of its obligation~~ to repurchase such Mortgage Loan from ~~the Trust Fund~~ REMIC I at the Purchase Price within 90 days after the date on which the Originator or ~~prior to~~ the ~~Determination Date following~~ Seller, as the ~~expiration of such 90 day period~~ case may be, was notified (subject to Section 2.03(e)~~); provided~~) of such missing document, ~~however~~defect or breach, if and to the extent that the ~~Servicer shall not be under any obligation~~ Originator or the Seller, as the case may be, is obligated 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 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 the case may be, the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as the case may be, shall furnish to it and as shall be necessary to vest in the Originator or the Seller, as the case may be, 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)~~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 the case may be, may cause such Mortgage Loan to be removed from ~~the Trust Fund~~ 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(d); provided, however, the Originator 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator or the Seller, as 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 ~~against the Originator~~ respecting such omission, defect or breach available to the Trustee on behalf of the Certificateholders. (b) ~~Within~~ Subject to Section 2.03(e), within 90 days of the earlier of discovery by the Depositor or receipt of notice by the Depositor of the breach of any ~~representation,~~ representation or warranty ~~or covenant~~ of the Depositor set forth in Section ~~2.06, which materially and adversely affects the interests of the Certificateholders in~~ 2.04 with respect to any Mortgage Loan, which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Depositor shall (i) cure such breach in all material respects, (ii) repurchase the Mortgage Loan from REMIC I at the Purchase Price or (iii) remove such Mortgage Loan 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(d). If any such breach is a breach of any of the representations and warranties included in Section 2.04(a)(iv), and the Depositor is unable to cure such breach, the Depositor shall repurchase or substitute the smallest number of Mortgage Loans as shall be required to make such representation or warranty true and correct. The Purchase Price for any repurchased Mortgage Loan shall be delivered to the Master Servicer for deposit in the Collection Account, and the Trustee, upon receipt of written certification from the Master Servicer of such deposit, shall at the Depositor's direction release to the Depositor the related Mortgage File and shall execute and deliver such instruments of transfer or assignment furnished by the Depositor, in each case without recourse, as the Depositor shall furnish to it and as shall be necessary to vest in the Depositor any Mortgage Loan released pursuant hereto. (ci) 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. (ii) 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 Holders of the Class P Certificates to any Prepayment Charge, the Master Servicer shall cure such breach in all material respects. If the representation made by the Master Servicer in Section 2.05(vii) is breached, the Master Servicer must pay into the Collection Account the amount of the scheduled Prepayment Charge, less any amount previously collected and paid by the Master Servicer into the Collection Account; and if the covenant made by the Master Servicer in Section 2.05(viii) is breached, the Master Servicer must pay into the Collection Account the amount of the waived Prepayment Charge. (d) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) ), in the case of the Originator or the Seller, or Section 2.03(b), in the case of the Depositor, must be effected prior to the ~~last Business Day that~~ date which is ~~within~~ two years after the ~~Closing Date.~~ Startup Day for REMIC I. As to any Deleted Mortgage Loan for which an Originator or the ~~Originator~~ Seller or the Depositor substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller or the Depositor, as the case may be, delivering to the Trustee (or ~~the~~ a Custodian on behalf of the Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the ~~Mortgage and~~ Mortgage, the Assignment to the ~~Trustee in blank~~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~~ Shortfall Amount (as described below), if any, in connection with such substitution. The Trustee (or ~~the~~ a Custodian on behalf of the Trustee) shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ~~45 days~~ ten Business Days thereafter, ~~shall~~ review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Depositor and the Master Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 and the Master Servicer a certification substantially in the form of Exhibit ~~F-2~~ C-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 ~~the Trust Fund~~ REMIC I and will be retained by the ~~Originator~~Depositor, the Originator or the Seller, as the case may be. For the month of substitution, distributions to Certificateholders will reflect the ~~collections and recoveries in respect of~~ Monthly Payment due on such Deleted Mortgage Loan in on or before the Due ~~Period preceding~~ Date in the month of ~~substitution~~ substitution, and the Depositor, the Originator or the Seller, as the case may be, 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 ~~NIMS Insurer and the Trustee, who shall forward such notice to the Certificateholders,~~ 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 ~~NIMS Insurer and the~~ Trustee. Upon such ~~substitution by the Originator~~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~~ and, in the case of a substitution effected by the Originator or the Seller, the Mortgage Loan Purchase Agreement, ~~including~~ 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 Purchase ~~Agreement~~ Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, in each case as of the date of substitution. For any month in which the Depositor, the Originator or the Seller 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”~~Shortfall Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the ~~aggregate~~aggregate of, as to each such Qualified Substitute Mortgage Loan, of the ~~Stated~~ Scheduled Principal Balance thereof as of the date of substitution, together with one month’s 's interest on such ~~Stated~~ Scheduled Principal Balance at the applicable Net Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances. On the date of such substitution, the Depositor, the Originator or the Seller, as 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~~Shortfall 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 certification by the Master Servicer of such deposit, shall release to the Depositor, the Originator or the Seller, as the case may be, the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Depositor, the Originator or the Seller, as the case may be, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Depositor, the Originator or the Seller, as the case may be, 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 ~~the Trust Fund~~any of REMIC I, REMIC II or REMIC III, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section ~~860F(a)(I~~860F(a)(1) of the Code or on “"contributions after the startup date” " under Section ~~860G(d)(I~~860G(d)(1) of the ~~Code~~ Code, or (b) any of REMIC I, REMIC II or REMIC III 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~~. (e) Upon discovery by the Depositor, the ~~Servicer~~Originator, the ~~NIMS Insurer~~ 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~~parties. In connection therewith, the ~~Originator~~ Originator, the Seller or the ~~Depositor, as the case may be,~~ Depositor shall repurchase or, subject to the limitations set forth in Section 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 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~~2.04, 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~~Originator or the Seller, 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~~ Depositor, the Originator or the ~~Originator~~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. (f) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Fl Rte Pa THR Cer Ser 1999-Lbi)

Repurchase or Substitution of Mortgage Loans by the Originator. (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, as applicable, of any representation, warranty or covenant under the ~~Mortgage Loan Purchase~~ Master Agreement or Assignment Agreement, as applicable, in respect of any Mortgage Loan 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 NIMS 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 cure such defect or breach within 90 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or if the Originator does not cure such defect or breach in all material respects during such period, the Servicer (or, to the extent provided in Section 3.01, the Trustee) shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the ~~Mortgage Loan Purchase~~ Master Agreement or the Seller's obligation under the Assignment Agreement and notify the Originator or the Seller, as applicable, 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(e)); provided, however, that the 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 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 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 Seller, as applicable, any Mortgage Loan released pursuant 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~~ 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 ~~Originator~~ 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®~~ MERS(R) System, the ~~Originator~~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~~ Seller and shall cause such Mortgage to be removed from registration on the ~~MERS®~~ MERS(R) System in accordance with MERS’ ' rules and regulations. 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. (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 last Business Day that is within two years after the 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 and the Assignment to the ~~Trustee in blank~~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 (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 45 days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Servicer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the ~~Originator~~Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding 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 NIMS Insurer and~~ the 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 ~~NIMS Insurer and the~~ Trustee. Upon such substitution by the ~~Originator~~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 all applicable representations and warranties thereof included in the ~~Mortgage Loan Purchase~~ 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”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the 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 Mortgage Rate. 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, 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 certification by the Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section 860F(a)(I) of the Code or on “"contributions after the startup date” " under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the ~~Servicer, the NIMS Insurer~~ 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 under the ~~Mortgage Loan Purchase~~ 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 or the 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) ~~In addition~~ 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 ~~foregoing~~Trustee shall promptly notify the Servicer of such breach and the Servicer shall request that the Seller remedy such breach by the Seller, to the extent ~~of a breach of~~ provided in the ~~representation of~~ Assignment Agreement, in the ~~Depositor~~ manner and within the time periods set forth in ~~Section 2.06(x),~~ the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage LoanAssignment Agreement.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Soundview Home Loan Trust 2004-Wmc1)

Repurchase or Substitution of Mortgage Loans by the Originator. (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, as applicable, of any representation, warranty or covenant under the ~~Mortgage Loan Purchase~~ Master Agreement or Assignment Agreement, as applicable, in respect of any Mortgage Loan 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 NIMS 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 cure such defect or breach within 90 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or if the Originator does not cure such defect or breach in all material respects during such period, the Servicer (or, to the extent provided in Section 3.02, the Trustee) shall ~~use commercially reasonable efforts to attempt to~~ enforce (in the manner set forth in Section 2.01) the Originator’s obligation under the ~~Mortgage Loan Purchase~~ Master Agreement or the Seller’s obligation under the Assignment Agreement and notify the Originator or the Seller, as applicable, 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(e)); provided, however, that the 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 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 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 Seller, as applicable, any Mortgage Loan released pursuant 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~~ 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 ~~Originator~~ 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® System, the ~~Originator~~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~~ Seller and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. 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. (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 last Business Day that is within two years after the 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 and the Assignment to the ~~Trustee in blank~~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 (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 45 days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit 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 Servicer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the ~~Originator~~Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding 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~~ Servicer shall give or cause to be given written notice to the NIMS Insurer and the 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 NIMS Insurer and the Trustee. Upon such substitution by the ~~Originator~~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 all applicable representations and warranties thereof included in the ~~Mortgage Loan Purchase~~ 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”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the 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 Mortgage Rate. 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, 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 certification by the Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and 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 the Trust Fund, including without limitation, any federal tax imposed on “prohibited transactions” under Section 860F(a)(I) of the Code or on “contributions after the startup date” under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 under the ~~Mortgage Loan Purchase~~ 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 or the 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) ~~In addition~~ 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 ~~foregoing~~Trustee shall promptly notify the Servicer of such breach and the Servicer shall request that the Seller remedy such breach by the Seller, to the extent ~~of a breach of~~ provided in the ~~representation of~~ Assignment Agreement, in the ~~Depositor~~ manner and within the time periods set forth in ~~Section 2.06(x),~~ the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage LoanAssignment Agreement.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Fremont Home Loan Trust 2005-2)

Repurchase or Substitution of Mortgage Loans by the Originator. (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~~Master Agreement or the Assignment Agreement (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), as applicable, in respect of any Mortgage Loan 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 NIMS Insurer and the Servicer of such defect, missing document or breach and the Servicer~~ shall 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 ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the ~~Mortgage Loan Purchase~~ Master Agreement or the Seller's obligation under the Assignment Agreement and ~~notify~~ cause the Originator ~~of its obligation~~ or the Seller, as applicable, 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)); provided, however, that the 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 . If the Originator or the Seller, as applicable fails to repurchase or substitute for a such Mortgage Loan ~~which has breached a representation or warranty~~ in accordance with its obligations under the ~~Mortgage Loan Purchase~~ Master Agreement or Assignment Agreement, respectively, the Trustee and the Depositor shall consult on further actions to be taken against the Originator or the Seller, as applicable. 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 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 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~~ 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, neither the Originator nor the Seller, as applicable, may ~~not~~ substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan ~~which breaches a representation~~ that violates any predatory or ~~warranty regarding~~ abusive ~~or predatory~~ lending laws. In furtherance of the foregoing, if the Originator is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulationslaw. 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. (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 last Business Day that is within two years after the 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 and the Assignment to the ~~Trustee in blank~~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 (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 45 days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Depositor and the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 and the Servicer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the ~~Originator~~Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding 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~~ Servicer shall give or cause to be given written notice to ~~the NIMS Insurer and~~ the 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 ~~NIMS Insurer and the~~ Trustee. Upon such substitution by the ~~Originator~~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 all applicable representations and warranties thereof included in the ~~Mortgage Loan Purchase~~ Master Agreement as of the date of substitution. For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “"Substitution Adjustment”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the 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 Mortgage Rate. 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, 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 certification by the Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section 860F(a)(I) of the Code or on “"contributions after the startup date” " under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the ~~Servicer, the NIMS Insurer~~ 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 under the ~~Mortgage Loan Purchase~~ 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

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

Repurchase or Substitution of Mortgage Loans by the Originator. THE SELLER OR THE DEPOSITOR; PAYMENT OF PREPAYMENT CHARGES IN THE EVENT OF BREACH. (a) Upon discovery or receipt of ~~written~~ notice of any materially defective document in, or that a document is missing from, a the Mortgage File or of the breach by the Originator or the Seller of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan or the interest therein of the ~~Certificateholders~~Certificateholders (in the case of any such representation or warranty made to the knowledge or the best of knowledge of the Originator or the Seller, as to which the Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made), the Trustee (or ~~the~~ a Custodian on ~~its behalf~~behalf of the Trustee) shall promptly notify the ~~NIMS Insurer~~ Originator or the Seller and the Master Servicer of such defect, missing document or breach and ~~the Servicer shall~~ request that the Originator or the Seller, as the case may be, deliver such missing document or ~~that the Originator~~ cure such defect or breach within 90 days from the date the Originator or the Seller, as the case may be, was notified of such missing document, defect or breach, and if the Originator or the Seller, as the case may be, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Master Servicer (or, in accordance with Section 3.02(b), the Trustee) shall ~~use commercially reasonable efforts to attempt to~~ enforce the ~~Originator’s obligation~~ obligations of the Originator or the Seller, as the case may be, under the Mortgage Loan Purchase Agreement ~~and notify the Originator of its obligation~~ to repurchase such Mortgage Loan from ~~the Trust Fund~~ REMIC I at the Purchase Price within 90 days after the date on which the Originator or ~~prior to~~ the ~~Determination Date following~~ Seller, as the ~~expiration of such 90 day period~~ case may be, was notified (subject to Section 2.03(e)~~); provided~~) of such missing document, ~~however~~defect or breach, if and to the extent that the ~~Servicer shall not be under any obligation~~ Originator or the Seller, as the case may be, is obligated 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 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 the case may be, the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as the case may be, shall furnish to it and as shall be necessary to vest in the Originator or the Seller, as the case may be, 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)~~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 the case may be, may cause such Mortgage Loan to be removed from ~~the Trust Fund~~ 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(d); provided, however, the Originator 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator or the Seller, as 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 ~~against the Originator~~ respecting such omission, defect or breach available to the Trustee on behalf of the Certificateholders. (b) ~~Within~~ Subject to Section 2.03(e), within 90 days of the earlier of discovery by the Depositor or receipt of notice by the Depositor of the breach of any ~~representation,~~ representation or warranty ~~or covenant~~ of the Depositor set forth in Section ~~2.06, which materially and adversely affects the interests of the Certificateholders in~~ 2.04 with respect to any Mortgage Loan, which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Depositor shall (i) cure such breach in all material respects, (ii) repurchase the Mortgage Loan from REMIC I at the Purchase Price or (iii) remove such Mortgage Loan 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(d). If any such breach is a breach of any of the representations and warranties included in Section 2.04(a)(iv), and the Depositor is unable to cure such breach, the Depositor shall repurchase or substitute the smallest number of Mortgage Loans as shall be required to make such representation or warranty true and correct. The Purchase Price for any repurchased Mortgage Loan shall be delivered to the Master Servicer for deposit in the Collection Account, and the Trustee, upon receipt of written certification from the Master Servicer of such deposit, shall at the Depositor's direction release to the Depositor the related Mortgage File and shall execute and deliver such instruments of transfer or assignment furnished by the Depositor, in each case without recourse, as the Depositor shall furnish to it and as shall be necessary to vest in the Depositor any Mortgage Loan released pursuant hereto. (ci) ~~Within 90 days of~~ Promptly upon 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. (ii) 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 Holders of the Class P Certificates to any Prepayment Charge, the Master Servicer shall cure such breach in all material respects. If the representation made by the Master Servicer in Section 2.05(vii) is breached, the Master Servicer must pay into the Collection Account the amount of the scheduled Prepayment Charge, less any amount collected and paid by the Master Servicer into the Collection Account; and if the covenant made by the Master Servicer in Section 2.05(viii) is breached, the Master Servicer must pay into the Collection Account the amount of the waived Prepayment Charge. (d) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) ), in the case of the Originator or the Seller, or Section 2.03(b), in the case of the Depositor, must be effected prior to the ~~last Business Day that~~ date which is ~~within~~ two years after the ~~Closing Date.~~ Startup Day for REMIC I. As to any Deleted Mortgage Loan for which the Originator or the Seller or the Depositor substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator or the Seller or the Depositor, as the case may be, delivering to the Trustee (or ~~the~~ a Custodian on behalf of the Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the ~~Mortgage and~~ Mortgage, the Assignment to the ~~Trustee in blank~~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~~ Shortfall Amount (as described below), if any, in connection with such substitution. The Trustee (or ~~the~~ a Custodian on behalf of the Trustee) shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ~~45 days~~ ten Business Days thereafter, ~~shall~~ review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Depositor and the Master Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 and the Master Servicer a certification substantially in the form of Exhibit ~~F-2~~ C-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 ~~the Trust Fund~~ REMIC I and will be retained by the ~~Originator~~Depositor, the Originator or the Seller, as the case may be. For the month of substitution, distributions to Certificateholders will reflect the ~~collections and recoveries in respect of~~ Monthly Payment due on such Deleted Mortgage Loan in on or before the Due ~~Period preceding~~ Date in the month of ~~substitution~~ substitution, and the Depositor, the Originator or the Seller, as the case may be, 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 ~~NIMS Insurer and the Trustee, who shall forward such notice to the Certificateholders,~~ 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 ~~NIMS Insurer and the~~ Trustee. Upon such ~~substitution by the Originator~~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~~ and, in the case of a substitution effected by the Originator or the Seller, the Mortgage Loan Purchase Agreement, ~~including~~ 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 Purchase ~~Agreement~~ Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, in each case as of the date of substitution. For any month in which the Depositor, the Originator or the Seller 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”~~Shortfall Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the ~~aggregate~~aggregate of, as to each such Qualified Substitute Mortgage Loan, of the ~~Stated~~ Scheduled Principal Balance thereof as of the date of substitution, together with one month’s 's interest on such ~~Stated~~ Scheduled Principal Balance at the applicable Net Mortgage Rate. On the date of such substitution, the Depositor, the Originator or the Seller, as 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~~Shortfall 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 certification by the Master Servicer of such deposit, shall release to the Depositor, the Originator or the Seller, as the case may be, the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Depositor, the Originator or the Seller, as the case may be, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Depositor, the Originator or the Seller, as the case may be, 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 ~~the Trust Fund~~any of REMIC I, REMIC II or REMIC III, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section ~~860F(a)(I~~860F(a)(1) of the Code or on “"contributions after the startup date” " under Section ~~860G(d)(I~~860G(d)(1) of the ~~Code~~ Code, or (b) any of REMIC I, REMIC II or REMIC III 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~~. (e) Upon discovery by the Depositor, the ~~Servicer~~Originator, the ~~NIMS Insurer~~ 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~~parties. In connection therewith, the ~~Originator~~ Originator, the Seller or the ~~Depositor, as the case may be,~~ Depositor shall repurchase or, subject to the limitations set forth in Section 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 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~~2.04, 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~~Originator or the Seller, 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~~ Depositor, the Originator or the ~~Originator~~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. (f) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (New Century Mortgage Securities LLC)

Repurchase or Substitution of Mortgage Loans by the Originator. the Seller or the Depositor; Payment of Prepayment Charges in the event of breach. (a) Upon discovery or receipt of ~~written~~ notice of any materially defective document in, or that a document is missing from, a the Mortgage File or of the breach by the Originator or the Seller of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan or the interest therein of the ~~Certificateholders~~Certificateholders (in the case of any such representation or warranty made to the knowledge or the best of knowledge of the Originator or the Seller, as to which the Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made), the Trustee (or ~~the~~ a Custodian on ~~its behalf~~behalf of the Trustee) shall promptly notify the ~~NIMS Insurer~~ Originator or the Seller and the Master Servicer of such defect, missing document or breach and ~~the Servicer shall~~ request that the Originator or the Seller, as the case may be, deliver such missing document or ~~that the Originator~~ cure such defect or breach within 90 days from the date the Originator or the Seller, as the case may be, was notified of such missing document, defect or breach, and if the Originator or the Seller, as the case may be, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Master Servicer (or, in accordance with Section 3.02(b), the Trustee) shall ~~use commercially reasonable efforts to attempt to~~ enforce the ~~Originator’s obligation~~ obligations of the Originator or the Seller, as the case may be, under the Mortgage Loan Purchase Agreement ~~and notify the Originator of its obligation~~ to repurchase such Mortgage Loan from ~~the Trust Fund~~ REMIC I at the Purchase Price within 90 days after the date on which the Originator or ~~prior to~~ the ~~Determination Date following~~ Seller, as the ~~expiration of such 90 day period~~ case may be, was notified (subject to Section 2.03(e)~~); provided~~) of such missing document, ~~however~~defect or breach, if and to the extent that the ~~Servicer shall not be under any obligation~~ Originator or the Seller, as the case may be, is obligated 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 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 the case may be, the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator or the Seller, as the case may be, shall furnish to it and as shall be necessary to vest in the Originator or the Seller, as the case may be, 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)~~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 the case may be, may cause such Mortgage Loan to be removed from ~~the Trust Fund~~ 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(d); provided, however, the Originator 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator or the Seller, as 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 ~~against the Originator~~ respecting such omission, defect or breach available to the Trustee on behalf of the Certificateholders. (b) ~~Within~~ Subject to Section 2.03(e), within 90 days of the earlier of discovery by the Depositor or receipt of notice by the Depositor of the breach of any ~~representation,~~ representation or warranty ~~or covenant~~ of the Depositor set forth in Section ~~2.06, which materially and adversely affects the interests of the Certificateholders in~~ 2.04 with respect to any Mortgage Loan, which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Depositor shall (i) cure such breach in all material respects. , (cii) ~~Within 90 days of~~ repurchase 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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan ~~for which~~ from REMIC I at the ~~Originator substitutes a Qualified Substitute~~ Purchase Price or (iii) remove such Mortgage Loan ~~or Loans, such substitution~~ from REMIC I (in which case it shall be effected by the Originator 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 and the Assignment to the 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 (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 45 days thereafter, shall review such documents as specified in Section 2.02 and deliver, with respect to such Qualified Substitute Mortgage Loan or Loans, become a certification substantially in the form attached hereto as Exhibit 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 Servicer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator 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 NIMS Insurer~~ ) and the 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 NIMS Insurer and the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator substitutes substitute one or more Qualified Substitute Mortgage Loans ~~for one or more Deleted Mortgage Loans~~in the manner and subject to the limitations set forth in Section 2.03(d). If any such breach is a breach of any of the representations and warranties included in Section 2.04(a)(iv), and the Depositor is unable to cure such breach, the ~~Servicer will determine~~ Depositor shall repurchase or substitute the ~~amount (the “Substitution Adjustment”), if any, by which the aggregate~~ smallest number of Mortgage Loans as shall be required to make such representation or warranty true and correct. The Purchase Price ~~of all such Deleted~~ for any repurchased Mortgage Loans exceeds the 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 Mortgage Rate. On the date of such substitution, the Originator will deliver or cause to Loan shall be delivered to the Master Servicer for deposit in the Collection ~~Account an amount equal to the Substitution Adjustment, if any~~Account, and the ~~Trustee (or the Custodian on behalf of the~~ Trustee), upon receipt of written certification from the ~~related Qualified Substitute Mortgage Loan or Loans and certification by the~~ Master Servicer of such deposit, shall at the Depositor's direction release to the ~~Originator~~ Depositor the related Mortgage File ~~or Files~~ and shall execute and deliver such instruments of transfer or ~~assignment~~assignment furnished by the Depositor, in each case without recourse, as the ~~Originator~~ Depositor shall ~~deliver~~ furnish to it and as shall be necessary to vest ~~therein~~ in the Depositor any ~~Deleted~~ Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “prohibited transactions” under Section 860F(a)(I) of the Code or on “contributions after the startup date” under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Long Beach Securities Corp)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 NIMS 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 cure such defect or breach within 90 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or if the Originator does not cure such defect or breach in all material respects during such period, the Servicer (or, to the extent provided in Section 3.02, the Trustee) shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~of its obligation~~ to repurchase such Mortgage Loan from the Trust Fund at the Purchase Price on or 50 prior to the Determination Date following the expiration of such 90 day period (subject to Section 2.03(e)); provided, however, that the 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 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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~~ 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 45 days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Servicer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator 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 NIMS Insurer and~~ the 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 NIMS Insurer and~~ the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “"Substitution Adjustment”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each such Qualified 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 Mortgage Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section 860F(a)(I) of the Code or on “"contributions after the startup date” " under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the ~~Servicer, the NIMS Insurer~~ 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Financial Asset Securities Corp Fremont Loan Tr 2003-1)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 (cause the ~~NIMS Insurer and~~ Custodian to notify) 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 cure such defect or breach within 90 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or if the Originator does not cure such defect or breach in all material respects during such period, the Servicer (or, to the extent provided in Section 3.02, the Trustee) shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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(e)); provided, however, that the 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 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 or cause the Custodian to release to the Originator the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant hereto and neither the Trustee nor the Trust Administrator shall have no any further responsibility with regard to such Mortgage File (it being understood that neither the Trustee nor the ~~Custodian~~ Trust Administrator 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the ~~MERS®~~ MERS(R) System, the ~~Originator,~~ Originator 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 and shall cause such Mortgage to be removed from registration on the ~~MERS®~~ MERS(R) System in accordance with MERS’ ' rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 45 days thereafter, shall review or cause the Custodian to review such documents as specified in Section 2.02 and ~~deliver~~deliver or cause the Custodian to deliver to the Servicer, the Master Servicer and the Trust Administrator, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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) shall~~ to deliver to the Servicer, the Master Servicer and the Trust Administrator a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator 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 ~~NIMS Insurer~~ Trustee, the Master Servicer and the ~~Trustee, who shall forward such notice to the Certificateholders,~~ Trust Administrator 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 ~~NIMS Insurer~~ Trustee, the Master Servicer and the ~~Trustee~~Trust Administrator. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “"Substitution Adjustment”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each such Qualified 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 Mortgage Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution Adjustment, if any, and the ~~Trustee (~~Trustee, upon receipt by it or by the Custodian on its behalf ~~of the Trustee), upon receipt~~ of the related Qualified Substitute Mortgage Loan or Loans and receipt by it of certification by the Servicer of such ~~deposit~~deposit and a Request for Release, shall release or cause the Custodian to release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator shall obtain at its own expense and deliver to the Trustee and the ~~NIMS Insurer~~ Trust Administrator an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section 860F(a)(I) of the Code or on “"contributions after the startup date” " under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the Servicer, the ~~NIMS Insurer~~ Master Servicer, the Trustee 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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 by the Originator for breach of a representation or warranty. (f) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Financial Asset Sec Corp Fremont Home Loan Trust 2003 A)

Repurchase or Substitution of Mortgage Loans by the Originator. (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, as applicable,~~ Agreement in respect of any Mortgage Loan 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 NIMS Insurer and the Servicer of such defect, missing document or breach and the Servicer~~ shall 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 ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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(e)); provided, however, that the 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 . If the Originator or the Seller, as applicable fails to repurchase or substitute for a such Mortgage Loan ~~which has breached a representation or warranty~~ in accordance with its obligations 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. 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 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 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~~ 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, neither the Originator nor the Seller, as applicable, may ~~not~~ substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan ~~which breaches a representation~~ that violates any predatory or ~~warranty regarding~~ abusive ~~or predatory~~ lending laws. In furtherance of the foregoing, if the Originator is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulationslaw. 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. (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 last Business Day that is within two years after the 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 and the Assignment to the ~~Trustee in blank~~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 (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 45 days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Depositor and the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 and the Servicer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the ~~Originator~~Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding 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~~ Servicer shall give or cause to be given written notice to ~~the NIMS Insurer and~~ the 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 ~~NIMS Insurer and the~~ Trustee. Upon such substitution by the ~~Originator~~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 all applicable representations and warranties thereof included in the Mortgage Loan Purchase Agreement as of the date of substitution. For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “"Substitution Adjustment”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the 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 Mortgage Rate. 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, 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 certification by the Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section 860F(a)(I) of the Code or on “"contributions after the startup date” " under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the ~~Servicer, the NIMS Insurer~~ 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

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

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 NIMS 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 cure such defect or breach within 90 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or if the Originator does not cure such defect or breach in all material respects during such period, the ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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(e)); provided, however, that the 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 . If the Originator fails to repurchase or substitute for a such Mortgage Loan ~~which has breached a representation or warranty~~ in accordance with its obligations under the Mortgage Loan Purchase Agreement, the Trustee and the Depositor shall consult on further actions to be taken against the Originator. 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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~~ 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 45 days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Depositor and the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 and the Servicer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period 50 preceding the month of substitution and the Originator 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 NIMS Insurer and~~ the 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 NIMS Insurer and~~ the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “"Substitution Adjustment”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the 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 Mortgage Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section 860F(a)(I) of the Code or on “"contributions after the startup date” " under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the ~~Servicer, the NIMS Insurer~~ 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Financial Asset Securities Corp Asset Back Cert Ser 2003-1)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 NIMS 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 cure such defect or breach within 90 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or if the Originator does not cure such defect or breach in all material respects during such period, the ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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(e)); provided, however, that the 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 . If the Originator fails to repurchase or substitute for a such Mortgage Loan ~~which has breached a representation or warranty~~ in accordance with its obligations under the Mortgage Loan Purchase Agreement, the Trustee and the Depositor shall consult on further actions to be taken against the Originator. 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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~~ 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 45 days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Depositor and the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 and the Servicer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator 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 NIMS Insurer and~~ the 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 NIMS Insurer and~~ the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “"Substitution Adjustment”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the 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 Mortgage Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section 860F(a)(I) of the Code or on “"contributions after the startup date” " under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the ~~Servicer, the NIMS Insurer~~ 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Financial Asset Securities Corp Asset Back Certs Ser 03-2)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase Agreement, as applicable, in respect of any Mortgage Loan 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 NIMS 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 cure such defect or breach within 90 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or cure such defect or breach in all material respects during such period, the Servicer shall use commercially reasonable efforts to attempt to enforce the Originator’s obligation under the Mortgage Loan Purchase Agreement and notify the Originator 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(e)); provided, however, that the 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 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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. It is understood by the parties hereto that a breach of the representations and warranties made in Section 2.06 (x), (xi), (xii), (xiii) and (xiv) shall be deemed to materially and adversely affect the interests of the Certificateholders in the related Mortgage Loan. (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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the 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 (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 45 days thereafter, shall review such documents as specified in Section 2.02 and deliver, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit 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 Servicer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator 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 NIMS Insurer and the 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 NIMS Insurer and the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “Substitution Adjustment”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the 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 Mortgage Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “prohibited transactions” under Section 860F(a)(I) of the Code or on “contributions after the startup date” under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Soundview Home Loan Trust 2006-Opt4)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 and the Master Servicer of such defect, missing document or breach and ~~the Servicer shall~~ request that the Originator deliver such missing document or ~~that the Originator~~ cure such defect or breach within 90 120 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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 90 120 day period (subject to Section 2.03(e)); ~~provided~~provided that, ~~however~~in connection with any such breach that could not reasonably have been cured within such 120 day period, ~~that~~ if the ~~Servicer~~ Originator shall ~~not be under any obligation~~ have commenced to ~~take any action pursuant to this paragraph unless directed by the Depositor and provided, further~~cure such breach within such 120 day period, the ~~Depositor hereby agrees~~ Originator shall be permitted to ~~assist~~ proceed thereafter diligently and expeditiously to cure the ~~Servicer in enforcing any obligations of~~ same within the ~~Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty~~ additional period provided 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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~~ 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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,~~ 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 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. (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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 ~~45 days~~ ten Business Days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Master Servicer and the NIMS Insurer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Master Servicer and the NIMS Insurer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator 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 NIMS Insurer and the 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 NIMS Insurer and the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “Substitution Adjustment”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the 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 Mortgage Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “prohibited transactions” under Section 860F(a)(I) of the Code or on “contributions after the startup date” under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.such

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Option One Mortgage Accep Corp Asset Back Certs Ser 2003 5)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the ~~Mortgage Loan~~ Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan or the interest therein of the ~~Certificateholders~~Noteholders, the ~~Trustee (or~~ Custodian, on behalf of the ~~Custodian on its behalf)~~ Indenture Trustee, shall promptly notify the ~~NIMS Insurer~~ Originator and the ~~Servicer~~ Seller of such defect, missing document (via the Exception Report with respect to a defect, or ~~breach~~ missing document) and the ~~Servicer~~ party discovering the breach shall give prompt written notice of the breach to the other parties to this Agreement and the Originator and the Securities Administrator shall request that the Originator deliver such missing document or cure such defect or that the Originator cure such ~~defect or~~ breach within 90 30 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or cure such defect or if the Originator does not cure such breach in all material respects during such period, the ~~Servicer~~ Securities Administrator, on behalf of the Indenture Trustee shall ~~use commercially reasonable efforts to attempt to enforce~~ notify the ~~Originator’s obligation under the Mortgage Loan Purchase Agreement~~ Sponsor and ~~notify~~ the Originator of ~~its~~ the Originator's 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 30 day period (subject to Section 2.03(e)); ~~provided~~provided that, ~~however~~in connection with any such breach that could not reasonably have been cured within such 30 day period, ~~that~~ if the ~~Servicer~~ Originator has commenced to cure such breach within such 30 day period, the Originator shall ~~not~~ be permitted to proceed thereafter diligently and expeditiously to cure the same within any additional period provided under ~~any obligation~~ the Assignment Agreement. Notwithstanding the foregoing, to ~~take any action~~ the extent the price required to be paid by the Originator for a repurchased Mortgage Loan is less than the Purchase Price, the Seller, as required pursuant to ~~this paragraph unless directed by~~ the ~~Depositor and provided, further, the Depositor hereby agrees to assist the Servicer in enforcing any obligations~~ terms of the ~~Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty under~~ Assignment Agreement, shall pay the ~~Mortgage Loan~~ difference between that amount and the Purchase ~~Agreement~~Price. 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~~ Custodian, on behalf of the ~~Trustee),~~ Indenture Trustee and upon receipt of written certification (in the form of a Request for Release hereto as Exhibit C) from the Servicer of such deposit, shall release to the Originator the related Mortgage File and the Indenture Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant hereto and the Indenture Trustee and the Custodian shall have no further responsibility with regard to such Mortgage File (it being understood that neither the Indenture 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 (other than any indemnification obligation of the Originator pursuant to the Purchase Agreement) against the Originator respecting such omission, defect or breach available to the Indenture Trustee on behalf of the ~~Certificateholders~~Noteholders. In the event that the Originator fails to comply with any of the terms of the Purchase Agreement, the Indenture Trustee, upon notice thereof from the Securities Administrator or the Master Servicer and on behalf of the Noteholders, shall enforce the obligations of the Originator to the extent such failure has a materially adverse effect on the value of such Mortgage Loan or the interest therein of the Noteholders. (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~~ Noteholders in any Mortgage Loan, the Servicer shall cure such breach in all material respects. 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 Servicer set forth in Section 2.04 which materially and adversely affects the interests of the Noteholders in any Mortgage Loan, the Master Servicer shall cure such breach in all material respects. (dc) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator delivering to the ~~Trustee (or the~~ Custodian on behalf of the Indenture Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage and the Assignment to the ~~Trustee in blank~~Indenture 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 (as described below), if any, in connection with such substitution. The ~~Trustee (or the Custodian~~ Custodian, on behalf of the Indenture Trustee) , shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within 45 days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Depositor, the Indenture Trustee, the Seller and the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~D-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the ~~Trustee (or the Custodian~~ Custodian, on behalf of the Indenture Trustee) , shall deliver to the Depositor, the Indenture Trustee, the Seller and the Servicer a certification substantially in the form of Exhibit ~~F-2~~ D-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 the Trust ~~Fund~~ and will be retained by the Originator. For the month of substitution, ~~distributions~~ payments to ~~Certificateholders~~ Noteholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator 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 ~~NIMS Insurer and the Trustee~~Securities Administrator, who shall forward such notice to the ~~Certificateholders~~Noteholders, 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 ~~NIMS Insurer~~ Indenture Trustee, the Securities Administrator, and the ~~Trustee~~Custodian. Upon such substitution by the ~~Originator,~~ Originator 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~~ Assignment Agreement as of the date of substitution. . (d) For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “"Substitution Adjustment”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the 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 Mortgage Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution Adjustment, if any, and ~~the Trustee (or the Custodian~~ Custodian, on behalf of the Indenture Trustee), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification by the Servicer of such deposit, shall release (or shall cause the Custodian to release) to the Originator the related Mortgage File or Files and the Indenture Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation or warranty, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “prohibited transactions” under Section 860F(a)(I) of the Code or on “contributions after the startup date” under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Sale and Servicing Agreement (Newcastle Mortgage Securities Trust 2007-1)

Repurchase or Substitution of Mortgage Loans by the Originator. (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~~Master Agreement or the Assignment Agreement (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), as applicable, in respect of any Mortgage Loan 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 NIMS Insurer and the Servicer of such defect, missing document or breach and the Servicer~~ shall 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 ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the ~~Mortgage Loan Purchase~~ Master Agreement or the Seller's obligation under the Assignment Agreement and ~~notify~~ cause the Originator ~~of its obligation~~ or the Seller, as applicable, 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)); provided, however, that the 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 . If the Originator or the Seller, as applicable fails to repurchase or substitute for a such Mortgage Loan ~~which has breached a representation or warranty~~ in accordance with its obligations under the ~~Mortgage Loan Purchase~~ Master Agreement or Assignment Agreement, respectively, the Trustee and the Depositor shall consult on further actions to be taken against the Originator or the Seller, as applicable. 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 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 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~~ 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, neither the Originator nor the Seller, as applicable, may ~~not~~ substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan ~~which breaches a representation~~ that violates any predatory 66 or ~~warranty regarding~~ abusive ~~or predatory~~ lending laws. In furtherance of the foregoing, if the Originator is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulationslaw. 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. (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 last Business Day that is within two years after the 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 and the Assignment to the ~~Trustee in blank~~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 (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 45 days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Depositor and the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 and the Servicer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the ~~Originator~~Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding 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~~ Servicer shall give or cause to be given written notice to ~~the NIMS Insurer and~~ the 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 ~~NIMS Insurer and the~~ Trustee. Upon such substitution by the ~~Originator~~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 all applicable representations and warranties thereof included in the ~~Mortgage Loan Purchase~~ Master Agreement as of the date of substitution. For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “"Substitution Adjustment”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the 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 Mortgage Rate. 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, 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 certification by the Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section 860F(a)(I) of the Code or on “"contributions after the startup date” " under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the ~~Servicer, the NIMS Insurer~~ 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 under the ~~Mortgage Loan Purchase~~ 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Finance America Mortgage Loan Trust 2004-3)

Repurchase or Substitution of Mortgage Loans by the Originator. (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, as applicable,~~ Agreement in respect of any Mortgage Loan 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 NIMS Insurer and the Servicer of such defect, missing document or breach and the Servicer~~ shall 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 ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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(e)); provided, however, that the 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 . If the Originator or the Seller, as applicable fails to repurchase or substitute for a such Mortgage Loan ~~which has breached a representation or warranty~~ in accordance with its obligations 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. 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 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 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~~ 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, neither the Originator nor the Seller, as applicable, may ~~not~~ substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan ~~which breaches a representation~~ that violates any predatory or ~~warranty regarding~~ abusive ~~or predatory~~ lending laws. In furtherance of the foregoing, if the Originator is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulationslaw. 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. (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 last Business Day that is within two years after the 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 and the Assignment to the ~~Trustee in blank~~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 (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 45 days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Depositor and the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 and the Servicer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the ~~Originator~~Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding 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~~ Servicer shall give or cause to be given written notice to ~~the NIMS Insurer and~~ the 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 ~~NIMS Insurer and the~~ Trustee. Upon such substitution by the ~~Originator~~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 all applicable representations and warranties thereof included in the Mortgage Loan Purchase Agreement as of the date of substitution. For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “Substitution Adjustment”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the 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 Mortgage Rate. 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, 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 certification by the Servicer of such deposit, shall release to the Originator or the Seller, as applicable, the related Mortgage File or Files and 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 the Trust Fund, including without limitation, any federal tax imposed on “prohibited transactions” under Section 860F(a)(I) of the Code or on “contributions after the startup date” under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the ~~Servicer, the NIMS Insurer~~ 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Equifirst Mortgage Loan Trust 2005-1)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 and the Master Servicer of such defect, missing document or breach and ~~the Servicer shall~~ request that the Originator deliver such missing document or ~~that the Originator~~ cure such defect or breach within 90 120 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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 90 120 day period (subject to Section 2.03(e)); ~~provided~~PROVIDED that, ~~however~~in connection with any such breach that could not reasonably have been cured within such 120 day period, ~~that~~ if the ~~Servicer~~ Originator shall ~~not be under any obligation~~ have commenced to ~~take any action pursuant to this paragraph unless directed by the Depositor and provided, further~~cure such breach within such 120 day period, the ~~Depositor hereby agrees~~ Originator shall be permitted to ~~assist~~ proceed thereafter diligently and expeditiously to cure the ~~Servicer in enforcing any obligations of~~ same within the ~~Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty~~ additional period provided 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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~~ 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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,~~ 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 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. (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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 ~~45 days~~ ten Business Days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Master Servicer and the NIMS Insurer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Master Servicer and the NIMS Insurer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator 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 NIMS Insurer and the 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 NIMS Insurer and the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “Substitution Adjustment”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the 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 Mortgage Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “prohibited transactions” under Section 860F(a)(I) of the Code or on “contributions after the startup date” under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Option One Mort Acceptance Corp Asset Back Cert Ser 2003 2)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 and the Master Servicer of such defect, missing document or breach and ~~the Servicer shall~~ request that the Originator deliver such missing document or ~~that the Originator~~ cure such defect or breach within 90 120 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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 90 120 day period (subject to Section 2.03(e)); provided, however, that the 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 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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~~ 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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,~~ 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 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. (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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 ~~45 days~~ ten Business Days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Master Servicer and the NIMS Insurer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Master Servicer and the NIMS Insurer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The ~~Depositor~~ Originator shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer ~~and the 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 NIMS Insurer and the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator 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”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each such Qualified 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 Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Master Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Master Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “prohibited transactions” under Section 860F(a)(I) of the Code or on “contributions after the startup date” under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.tax

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2004-1)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 NIMS 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 cure such defect or breach within 90 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or if the Originator does not cure such defect or breach in all material respects during such period, the Servicer (or, to the extent provided in Section 3.02, the Trustee) shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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(e)); provided, however, that the 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 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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~~ 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 45 days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Servicer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator 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 NIMS Insurer and the 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 NIMS Insurer and the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “Substitution Adjustment”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the 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 Mortgage Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “prohibited transactions” under Section 860F(a)(I) of the Code or on “contributions after the startup date” under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.noted

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Financial Asset Sec Corp Asset Backed Certs Series 2002-1)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 and the Master Servicer of such defect, missing document or breach and ~~the Servicer shall~~ request that the Originator deliver such missing document or ~~that the Originator~~ cure such defect or breach within 90 120 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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 90 120 day period (subject to Section 2.03(e)); ~~provided~~PROVIDED that, ~~however~~in connection with any such breach that could not reasonably have been cured within such 120 day period, ~~that~~ if the ~~Servicer~~ Originator shall ~~not be under any obligation~~ have commenced to ~~take any action pursuant to this paragraph unless directed by the Depositor and provided, further~~cure such breach within such 120 day period, the ~~Depositor hereby agrees~~ Originator shall be permitted to ~~assist~~ proceed thereafter 57 diligently and expeditiously to cure the ~~Servicer in enforcing any obligations of~~ same within the ~~Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty~~ additional period provided 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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~~ 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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,~~ 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 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. (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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 ~~45 days~~ ten Business Days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Master Servicer and the NIMS Insurer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Master Servicer and the NIMS Insurer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The ~~Depositor~~ Originator shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer ~~and the 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 NIMS Insurer and the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator 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”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each such Qualified 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 Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Master Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Master Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section ~~860F(a)(I~~860F(a)(l) of the Code or on “"contributions after the startup date” " under Section ~~860G(d)(I~~860G(d)(l) of the Code or (b) any 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. (e) Upon discovery by the ~~Depositor~~Originator, the 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~~parties. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.affected

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Option One Mortgage Accep Corp Asset Back Certs Ser 2003-4)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 and the Master Servicer of such defect, missing document or breach and ~~the Servicer shall~~ request that the Originator deliver such missing document or ~~that the Originator~~ cure such defect or breach within 90 120 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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 90 120 day period (subject to Section 2.03(e)); provided, however, that the 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 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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~~ 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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,~~ 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 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. (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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 ~~45 days~~ ten Business Days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Master Servicer and the NIMS Insurer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Master Servicer and the NIMS Insurer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The ~~Depositor~~ Originator shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer ~~and the 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 NIMS Insurer and the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator 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”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each such Qualified 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 Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Master Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Master Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section ~~860F(a)(I~~860F(a)(l) of the Code or on “"contributions after the startup date” " under Section ~~860G(d)(I~~860G(d)(l) of the Code or (b) any 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~~. (e)~~ . Upon discovery by the ~~Depositor~~Originator, the 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~~parties. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Option One Mortgage Acceptance Corp)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 NIMS 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 cure such defect or breach within 90 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or if the Originator does not cure such defect or breach in all material respects during such period, the Servicer (or, to the extent provided in Section 3.02, the Trustee) shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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(e)); provided, however, that the 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 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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~~ 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 45 days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Servicer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator 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 NIMS Insurer and~~ the 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 NIMS Insurer and~~ the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “"Substitution Adjustment”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each such Qualified 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 Mortgage Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section 860F(a)(I) of the Code or on “"contributions after the startup date” " under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the ~~Servicer, the NIMS Insurer~~ 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator if the affected Mortgage Loan’s 's status as a ~~non-~~non- qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Originator 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Financial Asset Sec Corp Asset Backed Certs Ser 2002-2)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 either Originator or the ~~Originator~~ Seller of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan ~~which~~ that 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 ~~NIMS Insurer~~ Seller, the related Originator and the Servicer of such defect, missing document or breach and ~~the Servicer shall~~ request that the related Originator or the Seller, as applicable, deliver such missing document or ~~that the Originator~~ cure such defect or breach within 90 60 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 breach in all material respects during such period, the ~~Servicer~~ Servicer, in accordance with Section 3.02(b), shall ~~use commercially reasonable efforts to attempt to~~ enforce the ~~Originator’s obligation~~ obligations of the related Originator or the Seller, as applicable, under the Mortgage Loan Purchase Agreement ~~and notify the Originator of its obligation~~ to repurchase such Mortgage Loan from ~~the Trust Fund~~ REMIC I at the Purchase Price within 90 days after the date on which the related Originator or ~~prior to~~ the ~~Determination Date following the expiration of such 90 day period~~ Seller, as applicable, was notified (subject to Section ~~2.03(e~~2.03(c)~~); provided~~) of such missing document, ~~however~~defect or breach, if and to the extent that the ~~Servicer shall not be under any obligation~~ related Originator or the Seller is obligated 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 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 related Originator or the Seller, as applicable, the related Mortgage File and 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 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 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 may not substitute for any Mortgage Loan which breaches a representation or warranty regarding abusive or predatory lending lawshereto. In furtherance of the foregoing, if the related Originator or the Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the ~~MERS®~~ MERS(R) System, the ~~Originator~~related 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 related Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the ~~MERS®~~ MERS(R) System in accordance with MERS’ ' rules and regulations. The Trustee 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 related 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). It is understood and agreed that the obligation of the related Originator and the Seller 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~~ respecting such omission, defect or breach available to the Trustee ~~on behalf of~~ and 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 ~~last Business Day that~~ date which is ~~within~~ two years after the ~~Closing Date.~~ Startup Day for REMIC I. As to any Deleted Mortgage Loan for which the related Originator or the Seller substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the related 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 and~~ Mortgage, the Assignment to the ~~Trustee in blank~~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~~ Shortfall 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 ~~45 days~~ ten Business Days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Depositor and the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 and the Servicer a certification substantially in the form of Exhibit ~~F-2~~ C-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 ~~the Trust Fund~~ REMIC I and will be retained by the ~~Originator~~Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the ~~collections and recoveries in respect of~~ Monthly Payment due on such Deleted Mortgage Loan in on or before the Due ~~Period preceding~~ Date in 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 shall give or cause to be given written notice to the ~~NIMS Insurer and the Trustee, who shall forward such notice to the Certificateholders,~~ 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 ~~NIMS Insurer and the~~ Trustee. Upon such ~~substitution by the Originator~~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~~ including, all applicable representations and warranties thereof included in the Mortgage Loan Purchase ~~Agreement as of the date of substitution~~Agreement. For any month in which either Originator or the ~~Originator~~ 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”~~Shortfall Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the ~~aggregate~~aggregate of, 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 related 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~~Shortfall 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 certification by the Servicer of such deposit, shall release to the related Originator or the Seller, as applicable, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, the related Originator or the Seller, as ~~the Originator~~ 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 ~~the~~ any Trust ~~Fund~~REMIC, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section ~~860F(a)(I~~860F(a)(1) of the Code or on “"contributions after the startup date” " under Section ~~860G(d)(I~~860G(d)(1) 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~~. (ec) Upon discovery by the Depositor, the ~~Servicer~~Seller, the ~~NIMS Insurer~~ 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~~parties. In connection therewith, the ~~Originator or the Depositor, as the case may be,~~ Seller shall repurchase or, subject to the limitations set forth in Section ~~2.03(d~~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 (i) by the Originator 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 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 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 or the Originator, 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. (f) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (National City Mortgage Capital LLC)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 and the Master Servicer of such defect, missing document or breach and ~~the Servicer shall~~ request that the Originator deliver such missing document or ~~that the Originator~~ cure such defect or breach within 90 120 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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 90 120 day period (subject to Section 2.03(e)); provided, however, that the 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 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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~~ 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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,~~ 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 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. (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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 ~~45 days~~ ten Business Days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Master Servicer and the NIMS Insurer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Master Servicer and the NIMS Insurer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The ~~Depositor~~ Originator shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer ~~and the 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 NIMS Insurer and the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator 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”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each such Qualified 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 Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Master Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Master Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section ~~860F(a)(I~~860F(a)(l) of the Code or on “"contributions after the startup date” " under Section ~~860G(d)(I~~860G(d)(l) of the Code or (b) any 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~~. (e)~~ . Upon discovery by the ~~Depositor~~Originator, the 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~~parties. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 under the Mortgage Loan Purchase Agreement or (ii) the Depositor, if the affected Mortgage Loan’s 's status as a ~~non-~~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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2005-1)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 and the Master Servicer of such defect, missing document or breach and ~~the Servicer shall~~ request that the Originator deliver such missing document or ~~that the Originator~~ cure such defect or breach within 90 120 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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 90 120 day period (subject to Section 2.03(e)); ~~provided~~provided that, ~~however~~in connection with any such breach that could not reasonably have been cured within such 120 day period, ~~that~~ if the ~~Servicer~~ Originator shall ~~not be under any obligation~~ have commenced to ~~take any action pursuant to this paragraph unless directed by the Depositor and provided, further~~cure such breach within such 120 day period, the ~~Depositor hereby agrees~~ Originator shall be permitted to ~~assist~~ proceed thereafter diligently and expeditiously to cure the ~~Servicer in enforcing any obligations of~~ same within the ~~Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty~~ additional period provided 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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~~ 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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,~~ 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 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. (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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 ~~45 days~~ ten Business Days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Master Servicer and the NIMS Insurer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Master Servicer and the NIMS Insurer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The ~~Depositor~~ Originator shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer ~~and the 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 NIMS Insurer and the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator 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”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each such Qualified 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 Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Master Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Master Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section ~~860F(a)(I~~860F(a)(l) of the Code or on “"contributions after the startup date” " under Section ~~860G(d)(I~~860G(d)(l) of the Code or (b) any 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. (e) Upon discovery by the ~~Depositor~~Originator, the 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~~parties. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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. ; provided, however, such repurchase or substitution shall occur within 90 days of the earlier of discovery by the Originator, the Depositor or the Master Servicer or receipt of such notice with respect to such affected Mortgage Loan.. The Trustee ~~(or the Custodian on behalf of the Trustee)~~ shall reconvey to the Depositor or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Option One Mortgage Loan Tr 2002-1 as-BCKD Cert Ser 2002-1)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 and the Master Servicer of such defect, missing document or breach and ~~the Servicer shall~~ request that the Originator deliver such missing document or ~~that the Originator~~ cure such defect or breach within 90 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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(e)); ~~provided~~PROVIDED that, ~~however~~in connection with any such breach that could not reasonably have been cured within such 90 day period, ~~that~~ if the ~~Servicer~~ Originator shall ~~not be under any obligation~~ have commenced to ~~take any action pursuant to this paragraph unless directed by the Depositor and provided, further~~cure such breach within such 90 day period, the ~~Depositor hereby agrees~~ Originator shall be permitted to ~~assist~~ proceed thereafter diligently and expeditiously to cure the ~~Servicer in enforcing any obligations of~~ same within the ~~Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty~~ additional period provided 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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~~ 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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,~~ 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 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. (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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 ~~45 days~~ ten Business Days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Master Servicer and the NIMS Insurer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Master Servicer and the NIMS Insurer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The ~~Depositor~~ Originator shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer ~~and the 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 NIMS Insurer and the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator 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”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each such Qualified 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 Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Master Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Master Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section ~~860F(a)(I~~860F(a)(l) of the Code or on “"contributions after the startup date” " under Section ~~860G(d)(I~~860G(d)(l) of the Code or (b) any 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. (e) Upon discovery by the ~~Depositor~~Originator, the 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~~parties. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 53 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Option One Mort Acc Corp Asset Backed Cert Ser 2001-4)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 NIMS 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 cure such defect or breach within 90 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or if the Originator does not cure such defect or breach in all material respects during such period, the Servicer (or, to the extent provided in Section 3.02, the Trustee) shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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(e)); provided, however, that the 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 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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~~ 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the ~~MERS®~~ MERS(R) System, the ~~Originator,~~ Originator 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~~ Seller and shall cause such Mortgage to be removed from registration on the ~~MERS®~~ MERS(R) System in accordance with MERS’ ' rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the 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 (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 45 days thereafter, shall review such documents as specified in Section 2.02 and deliver, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit 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 Servicer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator 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 NIMS Insurer and the 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 NIMS Insurer and the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “Substitution Adjustment”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the 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 Mortgage Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “prohibited transactions” under Section 860F(a)(I) of the Code or on “contributions after the startup date” under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.in

Appears in 1 contract

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

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 ~~NIMS~~ Originator, the NIMs Insurer and the Master Servicer of such defect, missing document or breach and ~~the Servicer shall~~ request that the Originator deliver such missing document or ~~that the Originator~~ cure such defect or breach within 90 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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(e)); ~~provided~~PROVIDED that, ~~however~~in connection with any such breach that could not reasonably have been cured within such 90 day period, ~~that~~ if the ~~Servicer~~ Originator shall ~~not be under any obligation~~ have commenced to ~~take any action pursuant to this paragraph unless directed by the Depositor and provided, further~~cure such breach within such 90 day period, the ~~Depositor hereby agrees~~ Originator shall be permitted to ~~assist~~ proceed thereafter diligently and expeditiously to cure the ~~Servicer in enforcing any obligations of~~ same within the ~~Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty~~ additional period provided 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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~~ 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee on behalf of the Certificateholders. (b) ~~Within~~ Subject to Section 2.03(e), within 90 days of the earlier of discovery by the Depositor or receipt of notice by the Depositor of the breach of any ~~representation,~~ representation or warranty ~~or covenant~~ of the Depositor set forth in Section ~~2.06, which materially and adversely affects the interests of the Certificateholders in~~ 2.06 with respect to any Mortgage Loan, which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Depositor shall (i) cure such breach in all material respects, (ii) repurchase the Mortgage Loan from the Trust at the Purchase Price or (iii) cause such Mortgage Loan to be removed from the Trust Fund (in which case it shall become a Deleted Mortgage Loan) and substituted for by one or more Qualified Substitute Mortgage Loans by the Originator in the manner and subject to the limitations set forth in Section 2.03(d). The Purchase Price for any repurchased Mortgage Loan shall be delivered to the Master Servicer for deposit in the Collection Account, and, upon receipt thereof, the Master Servicer shall at the Depositor's direction release to the Depositor the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment furnished by the Depositor, in each case without recourse, as the Depositor shall furnish to it and as shall be necessary to vest in the Depositor any Mortgage Loan released pursuant hereto. (c) 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. (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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 ~~45 days~~ ten Business Days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Master Servicer and the NIMs Insurer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Master Servicer and the NIMs Insurer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The ~~Depositor~~ Originator shall give or cause to be given written notice to the ~~NIMS Insurer~~ Certificateholders and the ~~Trustee, who shall forward such notice to the Certificateholders,~~ 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 ~~NIMS~~ NIMs Insurer and the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator 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”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each such Qualified 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 Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Master Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Master Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator shall obtain at its own expense and deliver to the Trustee and the ~~NIMS~~ NIMs Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section ~~860F(a)(I~~860F(a)(l) of the Code or on “"contributions after the startup date” " under Section ~~860G(d)(I~~860G(d)(l) of the Code or (b) any 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. (e) Upon discovery by the ~~Depositor~~Originator, the Master Servicer, the ~~NIMS~~ 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~~parties. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Option One Mort Accep Corp Asset Backed Cert Ser 2001-1)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 (cause the ~~NIMS Insurer and~~ Custodian to notify) 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 cure such defect or breach within 90 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or if the Originator does not cure such defect or breach in all material respects during such period, the Servicer (or, to the extent provided in Section 3.02, the Trustee) shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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(e)); provided, however, that the 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 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 or cause the Custodian to release to the Originator the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant hereto and neither the Trustee nor the Trust Administrator shall have no any further responsibility with regard to such Mortgage File (it being understood that neither the Trustee nor the ~~Custodian~~ Trust Administrator 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the ~~MERS®~~ MERS(R) System, the ~~Originator,~~ Originator 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 and shall cause such Mortgage to be removed from registration on the ~~MERS®~~ MERS(R) System in accordance with MERS’ ' rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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 last Business Day 57 that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 45 days thereafter, shall review or cause the Custodian to review such documents as specified in Section 2.02 and ~~deliver~~deliver or cause the Custodian to deliver to the Servicer, the Master Servicer and the Trust Administrator, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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) shall~~ to deliver to the Servicer, the Master Servicer and the Trust Administrator a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator 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 ~~NIMS Insurer~~ Trustee, the Master Servicer and the ~~Trustee, who shall forward such notice to the Certificateholders,~~ Trust Administrator 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 ~~NIMS Insurer~~ Trustee, the Master Servicer and the ~~Trustee~~Trust Administrator. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “"Substitution Adjustment”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each such Qualified 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 Mortgage Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution Adjustment, if any, and the ~~Trustee (~~Trustee, upon receipt by it or by the Custodian on its behalf ~~of the Trustee), upon receipt~~ of the related Qualified Substitute Mortgage Loan or Loans and receipt by it of certification by the Servicer of such ~~deposit~~deposit and a Request for Release, shall release or cause the Custodian to release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator shall obtain at its own expense and deliver to the Trustee and the ~~NIMS Insurer~~ Trust Administrator an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section 860F(a)(I) of the Code or on “"contributions after the startup date” " under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the Servicer, the ~~NIMS Insurer~~ Master Servicer, the Trustee 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 under the Mortgage Loan Purchase Agreement or (ii) the Depositor, if the affected Mortgage Loan’s 's status as a ~~non-~~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 or the 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 by the Originator for breach of a representation or warranty. (f) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Fremont Home Loan Trust 2004-B)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 and the Master Servicer of such defect, missing document or breach and ~~the Servicer shall~~ request that the Originator deliver such missing document or ~~that the Originator~~ cure such defect or breach within 90 120 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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 90 120 day period (subject to Section 2.03(e)); provided, however, that the 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 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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~~ 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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,~~ 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 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. (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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 ~~45 days~~ ten Business Days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Master Servicer and the NIMS Insurer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Master Servicer and the NIMS Insurer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The ~~Depositor~~ Originator shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer ~~and the 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 NIMS Insurer and the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator 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”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each such Qualified 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 Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Master Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Master Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section ~~860F(a)(I~~860F(a)(l) of the Code or on “"contributions after the startup date” " under Section ~~860G(d)(I~~860G(d)(l) of the Code or (b) any 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~~. (e)~~ . Upon discovery by the ~~Depositor~~Originator, the 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~~parties. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.in

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2004-3)

Repurchase or Substitution of Mortgage Loans by the Originator. (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, as applicable, of any representation, warranty or covenant under the ~~Mortgage Loan Purchase~~ Master Agreement or Assignment Agreement, as applicable, in respect of any Mortgage Loan 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 NIMS 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 cure such defect or breach within 90 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or if the Originator does not cure such defect or breach in all material respects during such period, the Servicer (or, to the extent provided in Section 3.02, the Trustee) shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the ~~Mortgage Loan Purchase~~ Master Agreement or the Seller's obligation under the Assignment Agreement and notify the Originator or the Seller, as applicable, 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(e)); provided, however, that the 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 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 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 Seller, as applicable, any Mortgage Loan released pursuant 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~~ 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 ~~Originator~~ 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®~~ MERS(R) System, the ~~Originator~~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~~ Seller and shall cause such Mortgage to be removed from registration on the ~~MERS®~~ MERS(R) System in accordance with MERS’ ' rules and regulations. 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. (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 last Business Day that is within two years after the 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 and the Assignment to the ~~Trustee in blank~~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 (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 45 days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Servicer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the ~~Originator~~Originator or the Seller, as applicable. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding 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~~ Servicer shall give or cause to be given written notice to ~~the NIMS Insurer and~~ the 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 ~~NIMS Insurer and the~~ Trustee. Upon such substitution by the ~~Originator~~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 all applicable representations and warranties thereof included in the ~~Mortgage Loan Purchase~~ 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”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the 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 Mortgage Rate. 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, 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 certification by the Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section 860F(a)(I) of the Code or on “"contributions after the startup date” " under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the ~~Servicer, the NIMS Insurer~~ 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 under the ~~Mortgage Loan Purchase~~ 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 or the 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) ~~In addition~~ 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 ~~foregoing~~Trustee shall promptly notify the Servicer of such breach and the Servicer shall request that the Seller remedy such breach by the Seller, to the extent ~~of a breach of~~ provided in the ~~representation of~~ Assignment Agreement, in the ~~Depositor~~ manner and within the time periods set forth in ~~Section 2.06(x),~~ the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage LoanAssignment Agreement.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Fremont Home Loan Trust 2004-4)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 ~~NIMS Insurer~~ Originator and the Master Servicer of such defect, missing document or breach and ~~the Servicer shall~~ request that the Originator deliver such missing document or ~~that the Originator~~ cure such defect or breach within 90 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or cure such defect or breach in all material respects during such period, the ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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(e)); ~~provided~~PROVIDED that, ~~however~~in connection with any such breach that could not reasonably have been cured within such 90 day period, ~~that~~ if the ~~Servicer~~ Originator shall ~~not be under any obligation~~ have commenced to ~~take any action pursuant to this paragraph unless directed by the Depositor and provided, further~~cure such breach within such 90 day period, the ~~Depositor hereby agrees~~ Originator shall be permitted to ~~assist~~ proceed thereafter diligently and expeditiously to cure the ~~Servicer in enforcing any obligations of~~ same within the ~~Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty~~ additional period provided 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the 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 (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 45 days thereafter, shall review such documents as specified in Section 2.02 and deliver, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit 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 Servicer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator 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 NIMS Insurer and the 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 NIMS Insurer and the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “Substitution Adjustment”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the 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 Mortgage Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “prohibited transactions” under Section 860F(a)(I) of the Code or on “contributions after the startup date” under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.such

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Option One Mortgage Acceptance Corp Ass Back Cert Ser 2000 4)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 NIMS 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 cure such defect or breach within 90 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or if the Originator does not cure such defect or breach in all material respects during such period, the Servicer (or, to the extent provided in Section 3.02, the Trustee) shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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(e)); provided, however, that the 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 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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~~ 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 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 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 is not a member of MERS and repurchases a Mortgage Loan which is registered on the ~~MERS®~~ MERS(R) System, the ~~Originator,~~ Originator 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~~ Seller and shall cause such Mortgage to be removed from registration on the ~~MERS®~~ MERS(R) System in accordance with MERS’ ' rules and regulations. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 (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 45 days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 Servicer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator 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 NIMS Insurer and~~ the 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 NIMS Insurer and~~ the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “"Substitution Adjustment”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each such Qualified 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 Mortgage Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section 860F(a)(I) of the Code or on “"contributions after the startup date” " under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the ~~Servicer, the NIMS Insurer~~ 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) ~~In addition~~ Upon discovery or receipt of written notice of a breach by the Seller of any representation, warranty or covenant made by the Seller under Section 3.04 of the Mortgage Loan Purchase 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 ~~foregoing~~Trustee shall promptly notify the Servicer of such breach and the Servicer shall request that the Seller remedy such breach by the Seller, to the extent ~~of a breach of~~ provided in the ~~representation of~~ Mortgage Loan Purchase Agreement, in the ~~Depositor~~ manner and within the time periods set forth in ~~Section 2.06(x),~~ the ~~Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage LoanPurchase Agreement.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Fremont Home Loan Trust 2003-3 Asset Backed Certs)

Repurchase or Substitution of Mortgage Loans by the Originator. (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 of any representation, warranty or covenant under the Mortgage Loan Purchase ~~Agreement, as applicable,~~ Agreement in respect of any Mortgage Loan 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 NIMS 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 cure such defect or breach within 90 days from the date the Originator was notified of such missing document, defect or breach, and if the Originator does not deliver such missing document or if the Originator does not cure such defect or breach in all material respects during such period, the ~~Servicer~~ Trustee shall ~~use commercially reasonable efforts to attempt to~~ enforce the Originator’s 's obligation under the Mortgage Loan Purchase Agreement and ~~notify~~ cause the Originator ~~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(e)); provided, however, that the 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 . If the Originator fails to repurchase or substitute for a such Mortgage Loan ~~which has breached a representation or warranty~~ in accordance with its obligations under the Mortgage Loan Purchase Agreement, the Trustee and the Depositor shall consult on further actions to be taken against the Originator. 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 the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall furnish to it and as shall be necessary to vest in the Originator any Mortgage Loan released pursuant 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~~ 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 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 may not substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan ~~which breaches a representation~~ that violates any predatory or ~~warranty regarding~~ abusive ~~or predatory~~ lending laws. In furtherance of the foregoing, if the Originator is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator, 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 and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulationslaw. It is understood and agreed that the obligation of the Originator 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 respecting such omission, defect or breach available to the Trustee 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 last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Originator 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 and the Assignment to the ~~Trustee in blank~~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 57 satisfies the definition thereof and specifying the Substitution Adjustment (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 45 days thereafter, shall review such documents as specified in Section 2.02 and ~~deliver~~deliver to the Depositor and the Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit ~~F-1 (with a copy to the NIMS Insurer)~~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 and the Servicer a certification substantially in the form of Exhibit 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 the Trust Fund and will be retained by the Originator. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Originator 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 NIMS Insurer and~~ the 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 NIMS Insurer and~~ the Trustee. Upon such substitution by the Originator, 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 as of the date of substitution. For any month in which the Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Servicer will determine the amount (the “"Substitution Adjustment”"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the 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 Mortgage Rate. On the date of such substitution, the Originator will deliver or cause to be delivered to the Servicer for deposit in the Collection Account an amount equal to the Substitution 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 certification by the Servicer of such deposit, shall release to the Originator the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the Originator 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 the Trust Fund, including without limitation, any federal tax imposed on “"prohibited transactions” " under Section 860F(a)(I) of the Code or on “"contributions after the startup date” " under Section 860G(d)(I) of the Code or (b) any 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. (e) Upon discovery by the Depositor, the ~~Servicer, the NIMS Insurer~~ 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. In connection therewith, the Originator or the Depositor, as the case may be, shall repurchase or, subject to the limitations set forth in Section 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 (i) by the Originator 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 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 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 or the 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) In addition to the foregoing, to the extent of a breach of the representation of the Depositor set forth in Section 2.06(x), the Depositor shall repurchase or, subject to the limitations set forth in Section 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. The Depositor acknowledges that a breach of the representation set forth in Section 2.06(x) will be deemed to materially adversely affect the interests of the Certificateholders and shall require a repurchase of the affected Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Financial Asset Sec Corp Asset-Backed Certs Series 2004-1)

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