Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.

Appears in 14 contracts

Samples: Pooling and Servicing Agreement (Bear Stearns Arm Trust, Mortgage Pass-Through Certificates, Series 2004-7), Pooling and Servicing Agreement (Structured Asset Mort Inv Ii Inc Mort Pas THR Cert Se 04 Cl1), Pooling and Servicing Agreement (Bear Stearns Arm Trust Mort Pass THR Certs Ser 2003-8)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Mortgage Loan Seller may, no later than the date by which such purchase by the Mortgage Loan Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Mortgage Loan Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Mortgage Loan Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Mortgage Loan Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Mortgage Loan Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Mortgage Loan Seller. After such notification to the Mortgage Loan Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Mortgage Loan Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Mortgage Loan Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the Mortgage Loan Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the Mortgage Loan Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Mortgage Loan Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Mortgage Loan Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.

Appears in 11 contracts

Samples: Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc), Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc), Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc)

Substitution of Mortgage Loans. ~~Notwithstanding anything to~~ (a) On a Determination Date within two (2) years following the ~~contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement~~ Closing Date and which is on or ~~Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than~~ before the date by on which ~~such purchase by~~ the Seller would otherwise be ~~required, tender~~ required to ~~the Trustee~~ repurchase a ~~Substitute~~ Mortgage Loan ~~accompanied by a certificate of an authorized officer of~~ under Section 2.02 or 2.04, the Seller ~~that such Substitute Mortgage Loan conforms~~ may deliver to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the ~~Custodian, as its agent,~~ Custodian on behalf of the Trustee one or more Eligible Substitute Mortgage Loans in substitution for any one or more of the Defective Mortgage Loans which the Seller would otherwise be required to repurchase pursuant to Section 2.02 or 2.04. (b) The Seller shall notify the ~~Seller,~~ Servicer and the Trustee in ~~writing, within~~ writing not less than five (5) Business Days ~~after receipt, whether~~ before the related Determination Date which is on or ~~not~~ before the ~~documents relating~~ date on which the Seller would otherwise be required to ~~the Substitute~~ repurchase such Mortgage Loan ~~satisfy~~ pursuant to Section 2.02 or 2.04 of its intention to effect a substitution under this Section 2.05. On such Determination Date (the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan“Substitution Date”), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Trustee or the Custodian on behalf of the ~~documents related to~~ Trustee (1) the Eligible Substitute Mortgage ~~Loan in accordance with~~ Loans to be substituted for the ~~provisions~~ Defective Mortgage Loans, (2) a list of the Defective Mortgage ~~Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the~~ Loans to be substituted for by such Eligible Substitute Mortgage ~~Loan deemed to be~~ Loans, (3) an Officer’s Certificate (A) stating that the ~~Closing Date for purposes~~ aggregate Principal Balance of ~~the time periods set forth in those Subsections. The representations and warranties set forth in the~~ all Eligible Substitute Mortgage ~~Loan Purchase Agreement shall be deemed to have been made by the Seller~~ Loans (determined with respect to each Eligible Substitute Mortgage Loan as of the ~~date~~ Determination Date on which it was substituted) including the principal balance of ~~acceptance~~ Eligible Substitute Mortgage Loans being substituted on such Determination Date does not exceed an amount equal to 5% of the aggregate Original Class Principal Balance as of the Closing Date, (B) stating that all conditions precedent to such substitution specified in subsection (a) have been satisfied and attaching as an exhibit a supplemental Mortgage Loan by schedule (the ~~Trustee. The Master Servicer shall amend~~ “Supplemental Mortgage Loan Schedule”) setting forth the same type of information as appears on the Mortgage Loan Schedule and representing as to ~~reflect such substitution~~ the accuracy thereof and ~~shall provide a copy~~ (C) confirming that the representations and warranties contained in Section 2.04 are true and correct in all material respects with respect to the Substitute Mortgage Loans on and as of such Determination Date, provided that remedies for the inaccuracy of such representations are limited as set forth in Sections 2.02, 2.04 and this Section 2.05, (4) an Opinion of Counsel to the effect set forth below and (5) a certificate stating that cash in the amount of the related Substitution Adjustment, if any, has been delivered to the Servicer for deposit in the Collection Account. Upon receipt of the foregoing, the Trustee or the Custodian on behalf of the Trustee shall release such Defective Mortgage Loans to the Seller. (c) Concurrently with the satisfaction of the conditions set forth in Sections 2.05(a) and (b) above and the transfer of such Eligible Substitute Mortgage Loans to the Trustee pursuant to Section 2.05(a), Exhibit C to this Agreement shall be deemed to be amended to exclude all Mortgage Loans being replaced by such Eligible Substitute Mortgage Loans and to include the information set forth on the Supplemental Mortgage Loan Schedule with respect to such Eligible Substitute Mortgage Loans, and all references in this Agreement to Mortgage Loans shall include such Eligible Substitute Mortgage Loans and be deemed to be made on or after the related Substitution Date, as the case may be, as to such Eligible Substitute Mortgage Loans. (d) In connection with any Mortgage Loan that the Seller is required to purchase or replace, the Seller shall deliver to the Trustee an Opinion of Counsel to the effect that such purchase or substitution will not cause (x) any federal tax to be imposed on the Trust, including, without limitation, any Federal tax imposed on “prohibited transactions” under Section 860F(a)(1) of the Code or on “contributions after the start-up day” under Section 860G(d)(1) of the Code or (y) any portion of any REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. In the event that such opinion indicates that a repurchase or substitution will result in the imposition of a prohibited transaction tax, give rise to net taxable income or be deemed a contribution to a REMIC after its Startup Day, the Seller shall not be required to repurchase or replace any such Mortgage Loan unless and until the Servicer has determined and given the Seller and the ~~Rating Agencies~~Trustee written notice that there is an actual or imminent default with respect thereto or that such defect or breach adversely affects the enforceability of such Mortgage Loan.

Appears in 8 contracts

Samples: Pooling and Servicing Agreement (Renaissance Mort Accept Corp Home Equity Ln as Bk Ce Se 03-3), Pooling and Servicing Agreement (Home Equity Loan Asset-Backed Certificates Series 2003-2), Pooling and Servicing Agreement (Renaissance Home Equity Loan Tr Asset BKD Cer Series 2002-3)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Securities Administrator for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the ~~Repurchase~~ Purchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon written notification of the receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the ~~Trust Fund~~ Issuing Entity and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the ~~Trust Fund~~Issuing Entity. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Mortgage Loan shall be made unless the Securities Administrator and the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC provisions.

Appears in 7 contracts

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Backed Securities Trust, Series 2007-1), Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2006-A4), Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2006-Af1)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "“Substitute Mortgage Loan" ” in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "“qualified mortgage" ” as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Paying Agent for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.

Appears in 6 contracts

Samples: Pooling and Servicing Agreement (Bankunited Trust 2005-1, Mortgage Pass-Through Certificates, Series 2005-1), Pooling and Servicing Agreement (Bear Stearns ARM Trust 2005-10), Pooling and Servicing Agreement (Bear Stearns Arm Trust 2005-12)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or this Section ~~2.04 of this Agreement~~2.04, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of ~~Subsection~~ Section 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or ~~Subsections~~ Sections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in ~~those Subsections~~such Sections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.

Appears in 6 contracts

Samples: Pooling and Servicing Agreement (Structured Asset Mort Inv Ii Inc Bear Stearns Alt a Tr 04 6), Pooling and Servicing Agreement (Bear Stearns Trust Mortgage Pass-Through Certs Ser 2004), Pooling and Servicing Agreement (Bear Stearns BSALTA 2004-13)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Mortgage Loan Seller may, no later than the date by which such purchase by the Mortgage Loan Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Mortgage Loan Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Mortgage Loan Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Mortgage Loan Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Mortgage Loan Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Mortgage Loan Seller. After such notification to the Mortgage Loan Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Mortgage Loan Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Mortgage Loan Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the Mortgage Loan Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Mortgage Loan Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Mortgage Loan Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Mortgage Loan Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.

Appears in 6 contracts

Samples: Pooling and Servicing Agreement (Structured Asset Mort Inv Inc Bear Stearns Arm Trust 2003 3), Pooling and Servicing Agreement (Structured Asset Mortgage Investments Ii Inc), Pooling and Servicing Agreement (Structured Asset Mort Invest Inc Mort Pas THR Certs Ser 03 1)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the ~~Repurchase~~ Purchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (MERRILL LYNCH MORT INV INC MLMI Series 2004-A2), Pooling and Servicing Agreement (MERRILL LYNCH MORT INV TRUST MLMI Series 2005-A1), Pooling and Servicing Agreement (MERRILL LYNCH MORT INV TRUST MLMI Series 2005-A1)

Substitution of Mortgage Loans. ~~Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing~~ (a) On a ~~Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement~~ Determination Date which is on or ~~Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than~~ before the date by on which ~~such purchase by~~ the Seller would otherwise be ~~required~~required to repurchase a Mortgage Loan under Sections 2.02, ~~tender~~ 2.04 or 2.10, the Seller may deliver to the ~~Trustee a~~ Trust one or more Eligible Substitute Mortgage ~~Loan accompanied by a certificate of an authorized officer~~ Loans in substitution for any one or more of the Defective Mortgage Loans or Locked Loans which the Seller ~~that~~ would otherwise be required to repurchase pursuant to Sections 2.02, 2.04 or 2.10. In connection with any such substitution, the Seller shall calculate the Substitution Adjustment, if any, and shall deposit such amount to the Collection Account by 12:00 p.m. New York City time on the third Business Day prior to the Payment Date in the month succeeding the calendar month in which the related cure period expired. (b) The Seller shall notify the Master Servicer, the Insurer and the Indenture Trustee in writing not less than five Business Days before the related Determination Date which is on or before the date on which the Seller would otherwise be required to repurchase such Mortgage Loan pursuant to Sections 2.02, 2.04 or 2.10 of its intention to effect a substitution under this Section 2.06. On such Determination Date (the “Substitution Date”), the Seller shall deliver to the Insurer and the Indenture Trustee (1) the Eligible Substitute Mortgage Loans to be substituted for the Defective Mortgage Loans, (2) a list of the Defective Mortgage Loans to be substituted for by such Eligible Substitute Mortgage Loans, (3) an Officer’s Certificate (A) stating that no Event of Servicing Termination shall have occurred and be continuing, (B) stating that all conditions precedent to such substitution specified in subsection (a) have been satisfied and attaching as an exhibit a supplemental Mortgage Loan ~~conforms~~ schedule (the “Supplemental Mortgage Loan Schedule”) setting forth the same type of information as appears on the Mortgage Loan Schedule and representing as to the ~~requirements~~ accuracy thereof and (C) confirming that the representations and warranties contained in Section 2.04 are true and correct in all material respects with respect to the Eligible Substitute Mortgage Loans on and as of such Determination Date, provided that remedies for the inaccuracy of such representations are limited as set forth in Sections 2.02, 2.04, 2.10 and this Section 2.06 and (4) a certificate stating that cash in the ~~definition~~ amount of ~~"Substitute Mortgage Loan" in this Agreement; provided~~the related Substitution Adjustment, ~~however~~if any, ~~that substitution pursuant~~ has been deposited to the ~~Mortgage Loan Purchase Agreement~~ Collection Account; provided that the Indenture Trustee shall remit to the Depositor or ~~Section 2.04 of this Agreement~~the Insurer, as applicable, ~~in lieu~~ the portion of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, ~~by which the Outstanding Principal Balance as~~ of the ~~next preceding Due Date~~ Substitution Adjustment referred to in clause (d) of the ~~Mortgage Loan for which substitution is being made, after giving effect~~ definition thereof to the ~~Scheduled Principal due~~ extent such amount is incurred by or imposed on ~~such date, exceeds~~ the ~~Outstanding Principal Balance as of such date~~ Depositor or the Insurer. Upon receipt of the ~~Substitute~~ foregoing, the Trust shall release such Defective Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification Loans to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or ~~warranty~~ warranty. (c) Concurrently with the satisfaction of the conditions set forth in ~~form as provided~~ Sections 2.06(a) above and the transfer of such Eligible Substitute Mortgage Loans to ~~it as are necessary~~ the Trust pursuant to ~~vest in~~ Section 2.06(a), Exhibit A to this Agreement shall be deemed to be amended to exclude all Mortgage Loans being replaced by such Eligible Substitute Mortgage Loans and to include the ~~Seller title to and rights under any~~ information set forth on the Supplemental Mortgage Loan ~~released pursuant~~ Schedule with respect to such Eligible Substitute Mortgage Loans, and all references in this Agreement to Mortgage Loans shall include such Eligible Substitute Mortgage Loans and be deemed to be made on or after the ~~Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement~~related substitution date, as ~~applicable. The Seller shall deliver~~ the case may be, as to ~~the Custodian the documents related~~ such Eligible Substitute Mortgage Loans. (d) As to ~~the~~ any Eligible Substitute Mortgage Loan or Loans, the Seller shall cause to be delivered to the Indenture Trustee with respect to such Eligible Substitute Mortgage Loan or Loans such documents and agreements as are required to be held by the Indenture Trustee in accordance with Section 2.01. For any Due Period during which the ~~provisions~~ Seller purchases one or more Defective Mortgage Loans, the Master Servicer shall determine the amount that shall be deposited by the Seller in the Collection Account at the time of substitution. Any amounts received in respect of the Eligible Substitute Mortgage Loan ~~Purchase Agreement~~ or ~~Subsections 2.01(b)~~ Loans during the Due Period in which the circumstances giving rise to such substitution occur shall not be a part of the Trust and ~~2.02(b)~~ shall not be deposited by the Master Servicer in the Collection Account. All amounts received by the Master Servicer during the Due Period in which the circumstances giving rise to such substitution occur in respect of any Defective Mortgage Loan so removed by the Indenture Trustee shall be deposited by the Master Servicer in the Collection Account. Upon such substitution, the Eligible Substitute Mortgage Loan or Loans shall be subject to the terms of this ~~Agreement~~Agreement in all respects, and the Seller shall be deemed to have made with respect to such Eligible Substitute Mortgage Loan or Loans, as ~~applicable, with~~ of the date of ~~acceptance of~~ substitution, the ~~Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The~~ covenants, representations and warranties set forth in ~~the Mortgage Loan Purchase Agreement shall be deemed to have been made~~ Section 2.04. The procedures applied by the Seller ~~with respect to~~ in selecting each Eligible Substitute Mortgage Loan as shall not be materially adverse to the interests of the ~~date of acceptance of such Mortgage Loan by~~ Indenture Trustee, the ~~Trustee. The Master Servicer shall amend~~ Class A Noteholders or the ~~Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies~~Insurer.

Appears in 4 contracts

Samples: Sale and Servicing Agreement (First Horizon Asset Securities Inc), Sale and Servicing Agreement (Fund America Investors Corp Ii), Sale and Servicing Agreement (First Horizon Asset Securities Inc)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Indenture Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "“Substitute Mortgage Loan" ” in this Agreement~~; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase~~ . The Indenture Trustee shall ~~not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would~~ cause the ~~Mortgage Loan~~ Custodian to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Indenture Trustee or shall cause the ~~Custodian, as its agent, shall~~ Custodian to notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of ~~the fifth sentence of Subsection 2.02(a)~~Section 2.02. Within two Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Securities Administrator for deposit in the ~~Distribution~~ Payment Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of certification from the Securities Administrator that such ~~deposit~~excess has been deposited in the Payment Account, the Indenture Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust ~~Fund~~ Estate and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust ~~Fund~~Estate. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Indenture Trustee and the Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for~~ Indenture Trustee shall cause the ~~Trustee, shall~~ Custodian to release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or and Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Indenture Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Issuer, the Indenture Trustee, the Custodian and the Rating Agencies.

Appears in 4 contracts

Samples: Sale and Servicing Agreement (MortgageIT Trust 2005-5, Mortgage-Backed Notes, Series 2005-5), Sale and Servicing Agreement (MORTGAGEIT TRUST 2005-3, Mortgage-Backed Notes, Series 2005-3), Sale and Servicing Agreement (MORTGAGEIT TRUST 2005-2, Mortgage-Backed Notes, Series 2005-2)

Substitution of Mortgage Loans. ~~Notwithstanding anything to~~ (a) On a Determination Date within two years following the ~~contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement~~ Closing Date and which is on or ~~Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than~~ before the date by on which ~~such purchase by~~ the Seller would otherwise be ~~required, tender~~ required to ~~the Trustee~~ repurchase a ~~Substitute~~ Mortgage Loan ~~accompanied by a certificate of an authorized officer of~~ under Section 2.02 or 2.04, the Seller ~~that such Substitute Mortgage Loan conforms~~ may deliver to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the ~~Custodian, as its agent,~~ Custodian on behalf of the Trustee one or more Eligible Substitute Mortgage Loans in substitution for any one or more of the Defective Mortgage Loans which the Seller would otherwise be required to repurchase pursuant to Section 2.02 or 2.04. (b) The Seller shall notify the ~~Seller,~~ Servicer and the Trustee in ~~writing, within~~ writing not less than five Business Days ~~after receipt, whether~~ before the related Determination Date which is on or ~~not~~ before the ~~documents relating~~ date on which the Seller would otherwise be required to ~~the Substitute~~ repurchase such Mortgage Loan ~~satisfy~~ pursuant to Section 2.02 or 2.04 of its intention to effect a substitution under this Section 2.05. On such Determination Date (the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan"Substitution Date"), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Trustee or the Custodian on behalf of the ~~documents related to~~ Trustee (1) the Eligible Substitute Mortgage ~~Loan in accordance with~~ Loans to be substituted for the ~~provisions~~ Defective Mortgage Loans, (2) a list of the Defective Mortgage ~~Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the~~ Loans to be substituted for by such Eligible Substitute Mortgage ~~Loan deemed to be~~ Loans, (3) an Officer's Certificate (A) stating that the ~~Closing Date for purposes~~ aggregate Principal Balance of ~~the time periods set forth in those Subsections. The representations and warranties set forth in the~~ all Eligible Substitute Mortgage ~~Loan Purchase Agreement shall be deemed to have been made by the Seller~~ Loans (determined with respect to each Eligible Substitute Mortgage Loan as of the ~~date~~ Determination Date on which it was substituted) including the principal balance of ~~acceptance~~ Eligible Substitute Mortgage Loans being substituted on such Determination Date does not exceed an amount equal to 5% of the aggregate Original Class Principal Balance as of the Closing Date, (B) stating that all conditions precedent to such substitution specified in subsection (a) have been satisfied and attaching as an exhibit a supplemental Mortgage Loan by schedule (the ~~Trustee. The Master Servicer shall amend~~ "Supplemental Mortgage Loan Schedule") setting forth the same type of information as appears on the Mortgage Loan Schedule and representing as to ~~reflect such substitution~~ the accuracy thereof and ~~shall provide a copy~~ (C) confirming that the representations and warranties contained in Section 2.04 are true and correct in all material respects with respect to the Substitute Mortgage Loans on and as of such Determination Date, provided that remedies for the inaccuracy of such representations are limited as set forth in Sections 2.02, 2.04 and this Section 2.05, (4) an Opinion of Counsel to the effect set forth below and (5) a certificate stating that cash in the amount of the related Substitution Adjustment, if any, has been delivered to the Servicer for deposit in the Collection Account. Upon receipt of the foregoing, the Trustee or the Custodian on behalf of the Trustee shall release such Defective Mortgage Loans to the Seller. (c) Concurrently with the satisfaction of the conditions set forth in Sections 2.05(a) and (b) above and the transfer of such Eligible Substitute Mortgage Loans to the Trustee pursuant to Section 2.05(a), Exhibit C to this Agreement shall be deemed to be amended to exclude all Mortgage Loans being replaced by such Eligible Substitute Mortgage Loans and to include the information set forth on the Supplemental Mortgage Loan Schedule with respect to such Eligible Substitute Mortgage Loans, and all references in this Agreement to Mortgage Loans shall include such Eligible Substitute Mortgage Loans and be deemed to be made on or after the related Substitution Date, as the case may be, as to such Eligible Substitute Mortgage Loans. (d) In connection with any Mortgage Loan that the Seller is required to purchase or replace, the Seller shall deliver to the Trustee an Opinion of Counsel to the effect that such purchase or substitution will not cause (x) any federal tax to be imposed on the Trust, including, without limitation, any Federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the start-up day" under Section 860G(d)(1) of the Code or (y) any portion of any REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. In the event that such opinion indicates that a repurchase or substitution will result in the imposition of a prohibited transaction tax, give rise to net taxable income or be deemed a contribution to a REMIC after its Startup Day, the Seller shall not be required to repurchase or replace any such Mortgage Loan unless and until the Servicer has determined and given the Seller and the ~~Rating Agencies~~Trustee written notice that there is an actual or imminent default with respect thereto or that such defect or breach adversely affects the enforceability of such Mortgage Loan.

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (Delta Fund Hm Equ Ln 2000-2 Hm Equ Ln Ass BKD CRT Ser 2000-2), Pooling and Servicing Agreement (Delta Funding Corp /De/), Pooling and Servicing Agreement (Delta Funding Corp /De/)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the ~~Seller~~ Sponsor (on its own behalf and on behalf of Master Funding) may, no later than the date by which such purchase by the ~~Seller~~ Sponsor would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the ~~Seller~~ Sponsor that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section ~~860G(a)(3~~860G(a)(3)(A) of the ~~Code~~Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9), without reliance on the provisions of Treasury Regulation Section 1.860G-2(a)(3) or Treasury Regulation Section 1.860G-2(f)(2) or any other provision that would allow a Mortgage Loan to be treated as a "qualified mortgage" notwithstanding its failure to meet the requirements of Section 860G(a)(3)(A) of the Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9), any such cure or substitution must occur within 90 days from the date the breach was discovered. The Sponsor will promptly notify the Master Servicer and the Securities Administrator of any such substitution. The Trustee or the Custodian, ~~as agent for the Trustee~~on its behalf, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as on its ~~agent~~behalf, shall notify the ~~Seller~~Sponsor, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of ~~Subsection~~ Section 2.02(a). Within two Business Days after such notification, the ~~Seller~~ Sponsor (on its own behalf and on behalf of Master Funding) shall provide to the ~~Trustee~~ Securities Administrator for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the ~~Seller~~ Sponsor of the Repurchase Price for the purchase of a Mortgage Loan by the ~~Seller~~Sponsor. After such notification to the ~~Seller~~ Sponsor and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the ~~Seller~~Sponsor. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the ~~Seller~~ Sponsor and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or the Custodian as agent of the Trustee, as applicable, of a Request for Release for such Mortgage Loan), the Trustee or the Custodian, ~~as agent for the Trustee~~on its behalf, shall release to the ~~Seller~~ Sponsor the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the ~~Seller~~ Sponsor title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The ~~Seller~~ Sponsor (on its own behalf and on behalf of Master Funding) shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or ~~Subsections~~ Sections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those ~~Subsections~~Sections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the ~~Seller~~ Sponsor with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The ~~Master Servicer~~ Sponsor shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Trustee, the Securities Administrator, the Master Servicer, each Custodian and the Rating Agencies. In connection with any substitution of a Mortgage Loan pursuant to this Section 2.04, the Sponsor shall furnish to the Securities Administrator an Officer's Certificate, signed by a duly authorized officer of the Sponsor to the effect that such substitution has been made in accordance with the terms and conditions of this Agreement and that all conditions precedent to such substitution have been satisfied, including the delivery to the Securities Administrator of the Purchase Price or Substitution Adjustment Amount, as applicable, for deposit into the Distribution Account, together with copies of any Opinion of Counsel required to be delivered pursuant to this Agreement and the related Request for Release. Solely for purposes of the Securities Administrator providing an Assessment of Compliance, upon receipt of such documentation, the Securities Administrator shall approve such substitution, as applicable, and which approval shall consist solely of the Securities Administrator's receipt of such documentation and deposits. It is understood and agreed that the obligation under this Agreement of the Sponsor (on its own behalf and on behalf of Master Funding) to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedies against the Sponsor and Master Funding respecting such breach available to Certificateholders, the Depositor, the Trustee or the Securities Administrator.

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (Bear Stearns ALT-A Trust 2006-6), Pooling and Servicing Agreement (Bear Stearns ALT-A Trust 2006-7), Pooling and Servicing Agreement (Bear Stearns Alt-a Trust 2006-8)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach of a Mortgage Loan representation or warranty would cause ~~the~~ such Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, then any such ~~cure or~~ substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the ~~Seller,~~ Seller in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Paying Agent for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request for Release for such Mortgage Loan), the Trustee (or the Custodian, as ~~agent for the Trustee,~~ its agent) shall release to the Seller the ~~related~~ Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and the Trustee shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (Structured Asset Mortgage Investments Ii Inc), Pooling and Servicing Agreement (Structured Asset Mortgage Investments II Series 2004-Ar5), Pooling and Servicing Agreement (Structured Asset Mortgage Investments Ii Trust Series 2004-Ar2)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of ~~Subsection~~ Section 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or the Custodian as agent of the Trustee, as applicable, of a Request for Release for such Mortgage Loan), the Trustee or the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or ~~Subsections~~ Sections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those ~~Subsections~~Sections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.

Appears in 4 contracts

Samples: Pooling and Servicing Agreement (Structured Asset Mort Inv Ii Inc Bear Stearns Alt a Tr 04 7), Pooling and Servicing Agreement (Structured Asset Mort Inv Ii Inc Bear Stearns Alt a Tr 04 11), Pooling and Servicing Agreement (Structured Asset Mort Inv Ii Inc Bear Stearns Alt a Tr 04 9)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "“Substitute Mortgage Loan" ” in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "“qualified mortgage" ” as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Master Servicer for deposit in the ~~Distribution~~ Master Servicer Collection Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2005-3), Pooling and Servicing Agreement (Prime Mortgage Trust 2005-4), Pooling and Servicing Agreement (Prime Mortgage Trust 2005-4)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the ~~Trustee~~ Trustee, on behalf of the Trust, a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement and this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such ~~date~~date (a "Substitution Adjustment Amount"), which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the ~~Trustee~~ Trustee, on behalf of the Trust, shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the ~~Trust Fund~~ Trust, and accrued interest for such month on the Mortgage Loan ~~for which~~ being repurchased by the ~~substitution is made~~ Seller and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the ~~Trust Fund~~Trust. Upon acceptance of the Substitute Mortgage Loan (and delivery to the ~~Custodian~~ Trustee (or Custodian) of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the ~~Trustee~~Trustee on behalf of the Trust. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and ~~the~~ each Rating ~~Agencies~~Agency.

Appears in 3 contracts

Samples: Trust, Pooling and Servicing Agreement (Thornburg Mortgage Securities Trust 2004-4), Trust, Pooling and Servicing Agreement (Structured Asset Mortgage Investments Ii Inc), Trust, Pooling and Servicing Agreement (Thornburg Mortgage Inc)

Substitution of Mortgage Loans. (a) Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the ~~Seller~~ Sponsor may, no later than the date by which such purchase by the ~~Seller~~ Sponsor would otherwise be required, tender to the Trustee (on behalf of the Trust) a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the ~~Seller~~ Sponsor that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section ~~860G(a)(3~~860G(a)(3)(A) of the ~~Code~~Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9), without reliance on the provisions of Treasury Regulation Section 1.860G-2(a)(3) or Treasury Regulation Section 1.860G-2(f)(2) or any other provision that would allow a Mortgage Loan to be treated as a "qualified mortgage" notwithstanding its failure to meet the requirements of Section 860G(a)(3)(A) of the Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9), any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the ~~Seller~~Sponsor, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of ~~Subsection~~ Section 2.02(a). Within two Business Days after such notification, the ~~Seller~~ Sponsor shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the ~~Seller~~ Sponsor of the Repurchase Price for the purchase of a Mortgage Loan by the ~~Seller~~Sponsor. After such notification to the ~~Seller~~ Sponsor and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the ~~Seller~~Sponsor. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the ~~Seller~~ Sponsor and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or the Custodian as agent of the Trustee, as applicable, of a Request for Release for such Mortgage Loan), the Trustee or the Custodian, as agent for the Trustee, shall release to the ~~Seller~~ Sponsor the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the ~~Seller~~ Sponsor title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The ~~Seller~~ Sponsor shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or ~~Subsections~~ Sections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those ~~Subsections~~Sections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the ~~Seller~~ Sponsor with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the ~~Trustee~~Trustee (on behalf of the Trust). The ~~Master Servicer~~ Sponsor shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee and~~ Trustee, who shall then deliver such amended Mortgage Loan Schedule to the Rating Agencies. (b) In connection with any substitution of a Mortgage Loan or the cure of a breach of a representation or warranty pursuant to this Section 2.04, the Sponsor shall promptly furnish to the Trustee an officer's certificate, signed by a duly authorized officer of the Sponsor to the effect that such substitution or cure has been made in accordance with the terms and conditions of this Agreement and that all conditions precedent to such substitution or cure have been satisfied, including the delivery to the Trustee of the Substitution Adjustment Amount, as applicable, for deposit into the Distribution Account, together with copies of any Opinion of Counsel required to be delivered pursuant to this Agreement and the related Request for Release, in which the Trustee may rely. Solely for purposes of the Trustee providing an Assessment of Compliance, upon receipt of such documentation, the Trustee shall approve such substitution or cure, as applicable, and which approval shall consist solely of the Trustee's receipt of such documentation and deposits.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Bear Stearns Mortgage Funding Trust 2006-Ar3), Pooling and Servicing Agreement (Bear Stearns Mortgage Funding Trust 2006-Ar1), Grantor Trust Agreement (Bear Stearns Mortgage Funding Trust 2006-Ar3)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Trustee, Radian and the Rating Agencies.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2004-1), Pooling and Servicing Agreement (Prime Mortgage Trust, Mortgage Pass-Through Certificates & Re-Remic Certificates, Series 2005-1), Pooling and Servicing Agreement (Prime Mortgage Trust, Mortgage Pass-Through Certificates & Re-Remic Certificates, Series 2005-1)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, ~~the Seller~~ EMC (on its own behalf and on behalf of Master Funding) may, no later than the date by which such purchase by the related Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "“Substitute Mortgage Loan" ” in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "“qualified mortgage" ” as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify ~~the Seller~~EMC (on its own behalf and on behalf of Master Funding), in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of ~~the fifth sentence of~~ Subsection 2.02(a). Within two Business Days after such notification, ~~the Seller~~ EMC (on its own behalf and on behalf of Master Funding) shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by ~~the Seller~~ EMC (on its own behalf and on behalf of Master Funding) of the ~~Repurchase~~ Purchase Price for the purchase of a Mortgage Loan by ~~the Seller~~EMC (on its own behalf and on behalf of Master Funding). After such notification to ~~the Seller~~ EMC (on its own behalf and on behalf of Master Funding) and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the related Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the related Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan), the Custodian, as agent for the Trustee, shall release to the related Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the related Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. ~~The Seller~~ EMC (on its own behalf and on behalf of Master Funding) shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the related Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to EMC (on its own behalf and on behalf of Master Funding), the Trustee and the Rating Agencies. In connection with any substitution of a Mortgage Loan pursuant to this Section 2.04 EMC (on its own behalf and on behalf of Master Funding) shall, or cause the related Servicer to, furnish to the Trustee an officer’s certificate, signed by a duly authorized officer of EMC (on its own behalf and on behalf of Master Funding) or the related Servicer, as the case may be, to the effect that such substitution has been made in accordance with the terms and conditions of this Agreement and that all conditions precedent to such substitution have been satisfied, together with copies of the Opinion of Counsel, if any, required to be delivered pursuant to Section 2.08 and the related Request for Release, on which the Trustee may rely. Solely for purposes of the Trustee providing an Assessment of Compliance, upon receipt of the deposit specified in the preceding paragraph, if applicable, and the documentation specified in the preceding sentence, the Trustee shall approve such substitution and which approval shall be based solely on the Trustee’s receipt of such documentation and deposits. It is understood and agreed that the obligation under this Agreement of EMC (on its own behalf and on behalf of Master Funding) to substitute any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedies against the Seller respecting such breach available to Certificateholders, the Depositor or the Trustee.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement, Pooling and Servicing Agreement (Prime Mortgage Trust 2007-3), Pooling and Servicing Agreement (Prime Mortgage Trust 2007-2)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Mortgage Loan Seller may, no later than the date by which such purchase by the Mortgage Loan Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Mortgage Loan Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Mortgage Loan Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Mortgage Loan Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Mortgage Loan Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Mortgage Loan Seller. After such notification to the Mortgage Loan Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Mortgage Loan Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Mortgage Loan Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the Mortgage Loan Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Mortgage Loan Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Mortgage Loan Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Mortgage Loan Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Structured Asset Mort Inv Inc Mort Pas THR Certs Ser 2003-3), Pooling and Servicing Agreement (Struct Ass Mort Inv Inc Bs Alta Mort Pas THR Cer Ser 2003 1), Pooling and Servicing Agreement (Struct Ass Mort Inv Inc Bs Alta Mort Pas THR Cer Ser 2003 1)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee (on behalf of the Trust) a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "“Substitute Mortgage Loan" ” in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a “qualified mortgage” as defined in Section 860G(a)(3)(A) of the Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9), without reliance on the provisions of Treasury Regulation Section 1.860G-2(a)(3) or Treasury Regulation Section 1.860G-2(f)(2) or any other provision that would allow a Mortgage Loan to be treated as a "qualified mortgage" ~~as defined in~~ notwithstanding its failure to meet the requirements of Section ~~860G(a)(3~~860G(a)(3)(A) of the ~~Code~~Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9), any such cure or substitution must occur within 90 days from the date the breach was discovered. The ~~Custodian, as agent for~~ Trustee or the ~~Trustee,~~ Custodian shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the ~~Custodian, as its agent,~~ Custodian shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of ~~Subsection~~ Section 2.02(a). Within two Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Securities Administrator for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon notice from the Securities Administrator to the Trustee of receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the ~~Custodian~~ Trustee or the Custodian, as applicable, of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for~~ Trustee or the ~~Trustee,~~ Custodian shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or ~~Subsections~~ Sections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those ~~Subsections~~Sections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the ~~Trustee~~Trustee (on behalf of the Trust). The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee and~~ Trustee, who shall then deliver such amended Mortgage Loan Schedule to the Rating Agencies.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (MortgageIT Trust 2005-Ar1), Pooling and Servicing Agreement (MortgageIT Trust 2005-Ar1), Pooling and Servicing Agreement (MortgageIT Trust 2005-Ar1)

Substitution of Mortgage Loans. ~~Notwithstanding anything to~~ (a) On a Determination Date within two (2) years following the ~~contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement~~ Closing Date and which is on or ~~Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than~~ before the date by on which ~~such purchase by~~ the Seller would otherwise be ~~required, tender~~ required to ~~the Trustee~~ repurchase a ~~Substitute~~ Mortgage Loan ~~accompanied by a certificate of an authorized officer of~~ under Section 2.02 or 2.04, the Seller ~~that such Substitute Mortgage Loan conforms~~ may deliver to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the ~~Custodian, as its agent,~~ Custodian on behalf of the Trustee one or more Eligible Substitute Mortgage Loans in substitution for any one or more of the Defective Mortgage Loans which the Seller would otherwise be required to repurchase pursuant to Section 2.02 or 2.04. (b) The Seller shall notify the ~~Seller,~~ Servicer and the Trustee in ~~writing, within~~ writing not less than five (5) Business Days ~~after receipt, whether~~ before the related Determination Date which is on or ~~not~~ before the ~~documents relating~~ date on which the Seller would otherwise be required to ~~the Substitute~~ repurchase such Mortgage Loan ~~satisfy~~ pursuant to Section 2.02 or 2.04 of its intention to effect a substitution under this Section 2.05. On such Determination Date (the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan"Substitution Date"), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Trustee or the Custodian on behalf of the ~~documents related to~~ Trustee (1) the Eligible Substitute Mortgage ~~Loan in accordance with~~ Loans to be substituted for the ~~provisions~~ Defective Mortgage Loans, (2) a list of the Defective Mortgage ~~Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the~~ Loans to be substituted for by such Eligible Substitute Mortgage ~~Loan deemed to be~~ Loans, (3) an Officer's Certificate (A) stating that the ~~Closing Date for purposes~~ aggregate Principal Balance of ~~the time periods set forth in those Subsections. The representations and warranties set forth in the~~ all Eligible Substitute Mortgage ~~Loan Purchase Agreement shall be deemed to have been made by the Seller~~ Loans (determined with respect to each Eligible Substitute Mortgage Loan as of the ~~date~~ Determination Date on which it was substituted) including the principal balance of ~~acceptance~~ Eligible Substitute Mortgage Loans being substituted on such Determination Date does not exceed an amount equal to 5% of the aggregate Original Class Principal Balance as of the Closing Date, (B) stating that all conditions precedent to such substitution specified in subsection (a) have been satisfied and attaching as an exhibit a supplemental Mortgage Loan by schedule (the ~~Trustee. The Master Servicer shall amend~~ "Supplemental Mortgage Loan Schedule") setting forth the same type of information as appears on the Mortgage Loan Schedule and representing as to ~~reflect such substitution~~ the accuracy thereof and ~~shall provide a copy~~ (C) confirming that the representations and warranties contained in Section 2.04 are true and correct in all material respects with respect to the Substitute Mortgage Loans on and as of such Determination Date, provided that remedies for the inaccuracy of such representations are limited as set forth in Sections 2.02, 2.04 and this Section 2.05, (4) an Opinion of Counsel to the effect set forth below and (5) a certificate stating that cash in the amount of the related Substitution Adjustment, if any, has been delivered to the Servicer for deposit in the Collection Account. Upon receipt of the foregoing, the Trustee or the Custodian on behalf of the Trustee shall release such Defective Mortgage Loans to the Seller. (c) Concurrently with the satisfaction of the conditions set forth in Sections 2.05(a) and (b) above and the transfer of such Eligible Substitute Mortgage Loans to the Trustee pursuant to Section 2.05(a), Exhibit C to this Agreement shall be deemed to be amended to exclude all Mortgage Loans being replaced by such Eligible Substitute Mortgage Loans and to include the information set forth on the Supplemental Mortgage Loan Schedule with respect to such Eligible Substitute Mortgage Loans, and all references in this Agreement to Mortgage Loans shall include such Eligible Substitute Mortgage Loans and be deemed to be made on or after the related Substitution Date, as the case may be, as to such Eligible Substitute Mortgage Loans. (d) In connection with any Mortgage Loan that the Seller is required to purchase or replace, the Seller shall deliver to the Trustee an Opinion of Counsel to the effect that such purchase or substitution will not cause (x) any federal tax to be imposed on the Trust, including, without limitation, any Federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the start-up day" under Section 860G(d)(1) of the Code or (y) any portion of any REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. In the event that such opinion indicates that a repurchase or substitution will result in the imposition of a prohibited transaction tax, give rise to net taxable income or be deemed a contribution to a REMIC after its Startup Day, the Seller shall not be required to repurchase or replace any such Mortgage Loan unless and until the Servicer has determined and given the Seller and the ~~Rating Agencies~~Trustee written notice that there is an actual or imminent default with respect thereto or that such defect or breach adversely affects the enforceability of such Mortgage Loan.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Renaissance Mortgage Acceptance Corp), Pooling and Servicing Agreement (Renaissance Mortgage Acceptance Corp), Pooling and Servicing Agreement (Renaissance Home Equity Loan Asset-BKD Cert Series 2002-1)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Mortgage Loan Seller may, no later than the date by which such purchase by the Mortgage Loan Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Mortgage Loan Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Mortgage Loan Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Mortgage Loan Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Mortgage Loan Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Mortgage Loan Seller. After such notification to the Mortgage Loan Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Mortgage Loan Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Mortgage Loan Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the Mortgage Loan Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the Mortgage Loan Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Mortgage Loan Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Mortgage Loan Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The ~~Master Servicer~~ Trustee shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.

Appears in 3 contracts

Samples: Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc), Pooling and Servicing Agreement (Structured Asset Mort Inv Inc Bear Stearns Arm Trust 2002-12), Pooling and Servicing Agreement (Structured Asset Mort Inv Inc Bear Stearns Arm Trust 2002-12)

Substitution of Mortgage Loans. ~~Notwithstanding anything to~~ (a) On a Determination Date within two (2) years following the ~~contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement~~ Closing Date and which is on or ~~Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than~~ before the date by on which ~~such purchase by~~ the Seller would otherwise be ~~required, tender~~ required to ~~the Trustee~~ repurchase a ~~Substitute~~ Mortgage Loan ~~accompanied by a certificate of an authorized officer of~~ under Section 2.02 or 2.04, the Seller ~~that such Substitute Mortgage Loan conforms~~ may deliver to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the ~~Custodian, as its agent,~~ Custodian on behalf of the Trustee one or more Eligible Substitute Mortgage Loans in substitution for any one or more of the Defective Mortgage Loans which the Seller would otherwise be required to repurchase pursuant to Section 2.02 or 2.04. (b) The Seller shall notify the ~~Seller~~Servicer, the Master Servicer, the Securities Administrator and the Trustee in ~~writing, within~~ writing not less than five (5) Business Days ~~after receipt, whether~~ before the related Determination Date which is on or ~~not~~ before the ~~documents relating~~ date on which the Seller would otherwise be required to ~~the Substitute~~ repurchase such Mortgage Loan ~~satisfy~~ pursuant to Section 2.02 or 2.04 of its intention to effect a substitution under this Section 2.05. On such Determination Date (the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan“Substitution Date”), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Trustee or the Custodian on behalf of the ~~documents related to~~ Trustee (1) the Eligible Substitute Mortgage ~~Loan in accordance with~~ Loans to be substituted for the ~~provisions~~ Defective Mortgage Loans, (2) a list of the Defective Mortgage ~~Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the~~ Loans to be substituted for by such Eligible Substitute Mortgage ~~Loan deemed to be~~ Loans, (3) an Officer’s Certificate (A) stating that the ~~Closing Date for purposes~~ aggregate Principal Balance of ~~the time periods set forth in those Subsections. The representations and warranties set forth in the~~ all Eligible Substitute Mortgage ~~Loan Purchase Agreement shall be deemed to have been made by the Seller~~ Loans (determined with respect to each Eligible Substitute Mortgage Loan as of the ~~date~~ Determination Date on which it was substituted) including the principal balance of ~~acceptance~~ Eligible Substitute Mortgage Loans being substituted on such Determination Date does not exceed an amount equal to 5% of the aggregate Original Certificate Principal Balance as of the Closing Date, (B) stating that all conditions precedent to such substitution specified in subsection (a) have been satisfied and attaching as an exhibit a supplemental Mortgage Loan by schedule (the ~~Trustee. The Master Servicer shall amend~~ “Supplemental Mortgage Loan Schedule”) setting forth the same type of information as appears on the Mortgage Loan Schedule and representing as to ~~reflect such substitution~~ the accuracy thereof and ~~shall provide a copy~~ (C) confirming that the representations and warranties contained in Section 2.04 are true and correct in all material respects with respect to the Substitute Mortgage Loans on and as of such ~~amended~~ Determination Date, provided that remedies for the inaccuracy of such representations are limited as set forth in Sections 2.02, 2.04 and this Section 2.05, (4) an Opinion of Counsel to the effect set forth below and (5) a certificate stating that cash in the amount of the related Substitution Adjustment, if any, has been delivered to the Servicer for deposit in the Collection Account. Upon receipt of the foregoing, the Trustee or the Custodian on behalf of the Trustee shall release such Defective Mortgage Loans to the Seller. (c) Concurrently with the satisfaction of the conditions set forth in Sections 2.05(a) and (b) above and the transfer of such Eligible Substitute Mortgage Loans to the Trustee pursuant to Section 2.05(a), the Mortgage Loan Schedule shall be deemed to be amended to exclude all Mortgage Loans being replaced by such Eligible Substitute Mortgage Loans and to include the information set forth on the Supplemental Mortgage Loan Schedule with respect to such Eligible Substitute Mortgage Loans, and all references in this Agreement to Mortgage Loans shall include such Eligible Substitute Mortgage Loans and be deemed to be made on or after the related Substitution Date, as the case may be, as to such Eligible Substitute Mortgage Loans. (d) In connection with any Mortgage Loan that the Seller is required to purchase or replace, or any Mortgage Loan that the Seller elects to repurchase pursuant to Section 2.04(b), the Seller shall deliver to the Trustee and the ~~Rating Agencies~~Securities Administrator an Opinion of Counsel to the effect that such purchase, replacement or repurchase will not cause (x) any federal tax to be imposed on the Trust, including, without limitation, any Federal tax imposed on “prohibited transactions” under Section 860F(a)(1) of the Code or on “contributions after the start-up day” under Section 860G(d)(1) of the Code or (y) any portion of any REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. In the event that such opinion indicates that a purchase, replacement or repurchase will result in the imposition of a prohibited transaction tax, give rise to net taxable income or be deemed a contribution to a REMIC after its Startup Day, the Seller shall not be required to purchase, replace or repurchase any such Mortgage Loan unless and until the Servicer has determined and given the Seller, the Master Servicer, the Securities Administrator and the Trustee written notice that there is an actual or imminent default with respect thereto or that such defect or breach adversely affects the enforceability of such Mortgage Loan.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Renaissance Home Equity Loan Trust 2007-3), Pooling and Servicing Agreement (Renaissance Home Equity Loan Trust 2007-3)

Substitution of Mortgage Loans. ~~Notwithstanding anything to the contrary in this Agreement, in~~ In lieu of purchasing a Mortgage Loan pursuant to the Underlying Purchase Agreement, the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Underlying Seller or the Mortgage Loan Seller, as applicable, may, no later than the date by which such purchase by the Underlying Seller or the Mortgage Loan Seller, as applicable, would otherwise be required, in accordance with and if required by the related agreement, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Underlying Seller or the Mortgage Loan Seller, as applicable, that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Underlying Purchase Agreement or this Agreement, as applicable; ~~provided~~PROVIDED, ~~however~~HOWEVER, that substitution pursuant to the Underlying Purchase Agreement, the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The ~~Custodian, as agent for the Trustee,~~ Trustee shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and ~~the Trustee or the Custodian, as its agent,~~ shall notify the Underlying Seller or the Mortgage Loan Seller, as applicable, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ third sentence of Subsection 2.02(a). Within two Business Days after such notification, the Underlying Seller or the Mortgage Loan Seller, as applicable, shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Underlying Seller or the Mortgage Loan Seller, as applicable, of the Repurchase Price for the purchase of a Mortgage Loan by the Underlying Seller or the Mortgage Loan Seller, as applicable. After such notification to the Underlying Seller or the Mortgage Loan Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Underlying Seller or the Mortgage Loan Seller, as applicable, or the Servicer. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Underlying Seller or the Mortgage Loan Seller, as applicable, and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage ~~Loan (and delivery to the Custodian of a Request for Release for such Mortgage~~ Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the Underlying Seller or the Mortgage Loan Seller, as applicable, the related Mortgage File related to any Mortgage Loan released pursuant to the Underlying Purchase Agreement, the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the Underlying Seller or the Mortgage Loan Seller, as applicable, title to and rights under any Mortgage Loan released pursuant to the Underlying Purchase Agreement, the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Underlying Seller shall ~~deliver to~~ deliver, or the ~~Custodian~~ Mortgage Loan Seller shall deliver, the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Underlying Purchase Agreement, the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Underlying Purchase Agreement and the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Underlying Seller or the Mortgage Loan Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The ~~Master Servicer~~ Trustee shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Servicer and the Rating Agencies.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc), Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc)

Substitution of Mortgage Loans. ~~Notwithstanding anything to~~ (a) On a Determination Date within two years following the ~~contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement~~ Closing Date and which is on or ~~Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than~~ before the date by on which ~~such purchase by~~ the Seller would otherwise be ~~required~~required to repurchase a Mortgage Loan under Section 2.2 or 2.4, ~~tender~~ the Seller may deliver to the Trustee a one or more Eligible Substitute Mortgage ~~Loan accompanied by a certificate of an authorized officer~~ Loans in substitution for any one or more of the Defective Mortgage Loans which the Seller ~~that such Substitute Mortgage Loan conforms~~ would otherwise be required to ~~the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution~~ repurchase pursuant to Sections 2.2 or 2.4. (b) The Seller shall notify the ~~Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement~~Issuer, ~~as applicable, in lieu of purchase shall not be permitted after~~ the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Owner Trustee, ~~shall examine~~ the ~~Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a)~~ Servicer and the Trustee ~~or the Custodian, as its agent, shall notify the Seller,~~ in ~~writing, within~~ writing not less than five Business Days ~~after receipt, whether~~ before the related Determination Date which is on or ~~not~~ before the ~~documents relating~~ date on which the Seller would otherwise be required to ~~the Substitute~~ repurchase such Mortgage Loan ~~satisfy~~ pursuant to Section 2.2 or 2.4 of its intention to effect a substitution under this Section. On such Determination Date (the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan"Substitution Date"), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the ~~Custodian~~ Issuer (1) the ~~documents related~~ Eligible Substitute Mortgage Loans to be substituted for the Original Mortgage Loans, (2) a list of the Original Mortgage Loans to be substituted for by such Eligible Substitute Mortgage Loans, (3) an Officers' Certificate (A) stating that no failure by the Servicer described in Section 7.1 shall have occurred and be continuing, (B) stating that all conditions precedent to such substitution specified in subsection (a) have been satisfied and attaching as an exhibit a supplemental Mortgage Loan schedule (the "Supplemental Mortgage Loan Schedule") setting forth the same type of information as appears on the Mortgage Loan Schedule and representing as to the accuracy thereof and (C) confirming that the representations and warranties contained in Section 2.4 are true and correct in all material respects with respect to the Substitute Mortgage ~~Loan in accordance with~~ Loans on and as of such Determination Date, provided that remedies for the ~~provisions~~ inaccuracy of ~~the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement,~~ such representations are limited as ~~applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods~~ set forth in ~~those Subsections~~Sections 2.2, 2.4 and this Section 2.5 and (4) a certificate stating that cash in the amount of the related Substitution Adjustment, if any, has been deposited to the Collection Account. ~~The representations and warranties~~ Upon receipt of the foregoing, the Issuer shall release such Original Mortgage Loans to the Seller. (c) Concurrently with the satisfaction of the conditions set forth in Section 2.5(a) and (b) above and the grant of such Eligible Substitute Mortgage ~~Loan Purchase~~ Loans to the Trustee pursuant to Section 2.5(a) above, Exhibit A to this Agreement shall be deemed to ~~have been made~~ be amended to exclude all Mortgage Loans being replaced by such Eligible Substitute Mortgage Loans and to include the ~~Seller~~ information set forth on the Supplemental Mortgage Loan Schedule with respect to ~~each~~ such Eligible Substitute Mortgage ~~Loan~~ Loans, and all references in this Agreement to Mortgage Loans shall include such Eligible Substitute Mortgage Loans and be deemed to be made on or after the related Substitution Date, as of the ~~date of acceptance of~~ case may be, as to such Eligible Substitute Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating AgenciesLoans.

Appears in 2 contracts

Samples: Master Servicing Agreement (Structured Asset Mortgage Investments Inc), Master Servicing Agreement (Structured Asset Mortgage Investments Inc)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to ~~the Mortgage Loan Purchase Agreement or~~ Sections 2.02 or ~~2.03 of this Agreement~~2.03A, ~~the Seller~~ BSMCC may, no later than the date by which such purchase by ~~the Seller~~ BSMCC would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by ~~a certificate~~ an Officer's Certificate of ~~an authorized officer of the Seller~~ BSMCC that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan~~" in this Agreement~~"; ~~provided~~PROVIDED, ~~however~~HOWEVER, that substitution pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section 2.04 ~~of this Agreement, as applicable,~~ in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The ~~Custodian, as agent for the Trustee,~~ Trustee shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and ~~the Trustee or the Custodian, as its agent,~~ shall notify the ~~Seller,~~ related Master Servicer in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ third sentence of Subsection 2.02(a). Within two Business Days after such notification, ~~the Seller~~ BSMCC shall provide to the Trustee for deposit in the ~~Distribution~~ appropriate subaccount of the Certificate Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by ~~the Seller~~ BSMCC of the Repurchase Price for the purchase of a Mortgage Loan by ~~the Seller~~BSMCC. After such notification to ~~the Seller~~ BSMCC and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage ~~Loan~~ Loan, which shall thereafter be deemed to be a Group 1 Mortgage Loan, Group 2 Mortgage Loan, Group 3 Mortgage Loan, Group 4 Mortgage Loan or Group 5 Mortgage Loan, as applicable, hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of ~~the Seller~~BSMCC. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of ~~the Seller~~ BSMCC and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage ~~Loan (and delivery to the Custodian of a Request for Release for such Mortgage~~ Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to ~~the Seller~~ BSMCC the related Mortgage File related to any Mortgage Loan released pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section 2.04 ~~of this Agreement, as applicable,~~ and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in ~~the Seller~~ BSMCC title to and rights under any Mortgage Loan released pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section ~~2.04 of this Agreement, as applicable~~2.04. ~~The Seller~~ BSMCC shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of ~~the Mortgage Loan Purchase Agreement or~~ Subsections 2.01(b) and 2.02(b~~) of this Agreement, as applicable~~), with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in ~~the Mortgage Loan Purchase Agreement~~ Exhibit C-1 shall be deemed to have been made by ~~the Seller~~ BSMCC with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The ~~Master Servicer~~ Trustee shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Master Servicer and the Rating Agencies.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Bear Stearns Mortgage Securities Inc), Pooling and Servicing Agreement (Bear Stearns Mortgage Securities Inc)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to ~~the Mortgage Loan Purchase Agreement or Sections~~ Section 2.02 or ~~2.03 of this Agreement~~2.03, ~~the Seller~~ [ ] may, no later than the date by which such purchase by ~~the Seller~~ [ ] would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by ~~a certificate~~ an Officer's Certificate of ~~an authorized officer of the Seller~~ [ ] that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan~~" in this Agreement~~"; provided, however, that substitution pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section 2.04 ~~of this Agreement, as applicable,~~ in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The ~~Custodian, as agent for the Trustee,~~ Trustee shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and ~~the Trustee or the Custodian, as its agent,~~ shall notify the ~~Seller,~~ Master Servicer in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ third sentence of ~~Subsection~~ Section 2.02(a). Within two Business Days after such notification, ~~the Seller~~ [ ] shall ~~provide to the Trustee for~~ deposit in the ~~Distribution~~ appropriate subaccount of the Certificate Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by ~~the Seller~~ [ ] of the Repurchase Price for the purchase of a Mortgage Loan by ~~the Seller~~[ ]. After such notification to ~~the Seller~~ [ ], and, if any such excess exists, upon receipt of such ~~deposit~~deposit and of written notification thereof signed by a Servicing Officer, the Trustee shall accept such Substitute Mortgage ~~Loan~~ Loan, which shall thereafter be deemed to be a Group I Mortgage Loan or Group II Mortgage Loan, as applicable, hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of ~~the Seller~~[ ]. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of ~~the Seller~~ [ ] and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage ~~Loan (and delivery to the Custodian of a Request for Release for such Mortgage~~ Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to ~~the Seller~~ [ ] the related Mortgage File related to any Mortgage Loan released pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section 2.04 ~~of this Agreement, as applicable,~~ and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in ~~the Seller~~ [ ] title to and rights under any Mortgage Loan released pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section ~~2.04 of this Agreement, as applicable~~2.04. ~~The Seller~~ [ ] shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of ~~the Mortgage Loan Purchase Agreement or Subsections~~ Sections 2.01(b) and 2.02(b~~) of this Agreement, as applicable~~), with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those ~~Subsections~~Sections. The representations and warranties set forth in ~~the Mortgage Loan Purchase Agreement~~ Exhibit C shall be deemed to have been made by ~~the Seller~~ [ ] with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The ~~Master Servicer~~ Trustee shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Master Servicer and the Rating Agencies.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Gs Mortgage Securities Corp), Pooling and Servicing Agreement (Gs Mortgage Securities Corp)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Indenture Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement~~; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase~~ . The Indenture Trustee shall ~~not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would~~ cause the ~~Mortgage Loan~~ Custodian to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Indenture Trustee or shall cause the ~~Custodian, as its agent, shall~~ Custodian to notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Master Servicer for deposit in the ~~Distribution~~ Master Servicer Collection Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of certification from the Master Servicer that such ~~deposit~~excess has been deposited in the Master Servicer Collection Account, the Indenture Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust ~~Fund~~ Estate and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust ~~Fund~~Estate. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Indenture Trustee and the Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for~~ Indenture Trustee shall cause the ~~Trustee, shall~~ Custodian to release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or and Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Indenture Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Issuer, the Indenture Trustee, the Custodian and the Rating Agencies.

Appears in 2 contracts

Samples: Sale and Servicing Agreement (Structured Asset Mortgage Investments II Inc., HomeBanc Mortgage Trust 2004-2), Sale and Servicing Agreement (Homebanc Mortgage Trust 2004-1)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or this Section ~~2.04 of this Agreement~~2.04, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ third sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Securities Administrator for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the ~~Repurchase~~ Purchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon written notification of the receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the ~~Trust Fund~~ Issuing Entity and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the ~~Trust Fund~~Issuing Entity. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or this Section ~~2.04 of this Agreement~~2.04, as applicable. The Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Mortgage Loan shall be made unless the Securities Administrator and the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC provisions.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Merrill Lynch Alternative Note Asset Trust, Series 2007-F1), Pooling and Servicing Agreement (Merrill Lynch Alternative Note Asset Trust, Series 2007-F1)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Indenture Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "“Substitute Mortgage Loan" ” in this Agreement~~; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase~~ . The Indenture Trustee shall ~~not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would~~ cause the ~~Mortgage Loan~~ Custodian to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Indenture Trustee or shall cause the ~~Custodian, as its agent, shall~~ Custodian to notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of ~~the fifth sentence of Subsection 2.02(a)~~Section 2.02. Within two Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Master Servicer for deposit in the ~~Distribution~~ Master Servicer Collection Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of certification from the Master Servicer that such ~~deposit~~excess has been deposited in the Master Servicer Collection Account, the Indenture Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust ~~Fund~~ Estate and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust ~~Fund~~Estate. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Indenture Trustee and the Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for~~ Indenture Trustee shall cause the ~~Trustee, shall~~ Custodian to release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or and Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Indenture Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Issuer, the Indenture Trustee, the Custodian and the Rating Agencies.

Appears in 2 contracts

Samples: Sale and Servicing Agreement (Bear Stearns Arm Trust, Mortgage-Backed Notes, Series 2005-9), Sale and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2005-2)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Paying Agent for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Bear Stearns Arm Trust 2005-3), Pooling and Servicing Agreement (Bear Stearns ARM Trust 2005-4)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Indenture Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement~~; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase~~ . The Indenture Trustee shall ~~not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would~~ cause the ~~Mortgage Loan~~ Custodian to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Indenture Trustee or shall cause the ~~Custodian, as its agent, shall~~ Custodian to notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of ~~the fifth sentence of Subsection 2.02(a)~~Section 2.02. Within two Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Securities Administrator for deposit in the ~~Distribution~~ Payment Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of certification from the Securities Administrator that such ~~deposit~~excess has been deposited in the Payment Account, the Indenture Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust ~~Fund~~ Estate and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust ~~Fund~~Estate. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Indenture Trustee and the Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for~~ Indenture Trustee shall cause the ~~Trustee, shall~~ Custodian to release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or and Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Indenture Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Issuer, the Indenture Trustee, the Custodian and the Rating Agencies.

Appears in 2 contracts

Samples: Sale and Servicing Agreement (MortgageIT Trust 2004-1), Sale and Servicing Agreement (MORTGAGEIT TRUST 2005-1, Mortgage-Backed Notes, Series 2005-1)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Grantor Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "“Substitute Mortgage Loan~~" in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase~~ ”. The Grantor Trustee shall ~~not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would~~ cause the ~~Mortgage Loan~~ Custodian to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Grantor Trustee or shall cause the ~~Custodian, as its agent, shall~~ Custodian to notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of ~~the fifth sentence of Subsection 2.02(a)~~Section 2.02. Within two Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Securities Administrator for deposit in the ~~Distribution~~ Payment Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of certification from the Securities Administrator that such ~~deposit~~excess has been deposited in the Payment Account, the Grantor Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Grantor Trust ~~Fund~~ Estate and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Grantor Trust ~~Fund~~Estate. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Grantor Trustee and the Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for~~ Grantor Trustee shall cause the ~~Trustee, shall~~ Custodian to release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or and Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Grantor Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Issuer, the Grantor Trustee, the Custodian and the Rating Agencies.

Appears in 2 contracts

Samples: Grantor Trust Agreement (Bear Stearns Arm Trust, Mortgage-Backed Notes, Series 2005-5), Grantor Trust Agreement (Bear Stearns Arm Trust, Mortgage-Backed Notes, Series 2005-5)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement (or the related Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans) or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement, the related Subsequent Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement (or the related Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans) or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach of a Mortgage Loan representation or warranty would cause ~~the~~ such Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, then any such ~~cure or~~ substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the ~~Seller,~~ Seller in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Paying Agent for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request for Release for such Mortgage Loan), the Trustee (or the Custodian, as ~~agent for the Trustee,~~ its agent) shall release to the Seller the ~~related~~ Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement (or the related Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans) or Section 2.04 of this Agreement, as applicable, and the Trustee shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement (or the related Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans) or Section 2.04 of this Agreement, as applicable. The Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement (or the related Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans) or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans) for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement (or the related Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans) shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the related Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Structured Asset Mortgage Investments II Trust 2004-Ar6), Pooling and Servicing Agreement (Structured Asset Mortgage Investments II Trust 2004-Ar6)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Indenture Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "“Substitute Mortgage Loan" ” in this Agreement~~; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase~~ . The Indenture Trustee shall ~~not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would~~ cause the ~~Mortgage Loan~~ Custodian to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Indenture Trustee or shall cause the ~~Custodian, as its agent, shall~~ Custodian to notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Master Servicer for deposit in the ~~Distribution~~ Master Servicer Collection Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of certification from the Master Servicer that such ~~deposit~~excess has been deposited in the Master Servicer Collection Account, the Indenture Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust ~~Fund~~ Estate and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust ~~Fund~~Estate. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Indenture Trustee and the Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for~~ Indenture Trustee shall cause the ~~Trustee, shall~~ Custodian to release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or and Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Indenture Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Issuer, the Indenture Trustee, the Custodian and the Rating Agencies.

Appears in 2 contracts

Samples: Sale and Servicing Agreement (Homebanc Corp), Sale and Servicing Agreement (Homebanc Corp)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the related Mortgage Loan Purchase Agreement, the related Servicing Agreement or Sections 2.02 or 2.03 of this Agreement, the Sellers, or the related Underlying Seller (each, for purposes of Section 2.04 only, a “Seller”) may, no later than the date by which such purchase by the related Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the related Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "“Substitute Mortgage Loan" ” in the related Mortgage Loan Purchase Agreement, the related Servicing Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the related Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "“qualified mortgage" ” as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the applicable Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of Subsection 2.02(a). Within two Business Days after such notification, the related Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the related Seller of the ~~Repurchase~~ Purchase Price for the purchase of a Mortgage Loan by the related Seller. After such notification to the ~~Seller~~ related Seller, and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the related Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the ~~Seller~~ related Seller, and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the ~~Seller~~ related Seller, the related Mortgage File related to any Mortgage Loan released pursuant to the related Mortgage Loan Purchase Agreement, the related Servicing Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the related Seller title to and rights under any Mortgage Loan released pursuant to the related Mortgage Loan Purchase Agreement, the related Servicing Agreement or Section 2.04 of this Agreement, as applicable. The related Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the related Mortgage Loan Purchase Agreement, the related Servicing Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the related Mortgage Loan Purchase Agreement and the related Servicing Agreement, as applicable, shall be deemed to have been made by the related Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Merrilll Lynch Mortgage Investors Trust, Series 2005-A10), Pooling and Servicing Agreement (Merrilll Lynch Mortgage Investors Trust, Series 2005-A10)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to Section 7.03 of the ~~Mortgage Loan Purchase~~ Servicing Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller or Originator may, no later than the date by which such purchase by ~~the~~ such Seller or Originator would otherwise be required, tender to the Trustee a Substitute Mortgage ~~Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage~~ Loan~~" in this Agreement~~; provided, however, that substitution pursuant to Section 7.03 of the ~~Mortgage Loan Purchase~~ Servicing Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "“qualified mortgage" ” as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify ~~the Seller~~such Seller or Originator, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute ~~Mortgage~~ mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of Subsection 2.02(a). Within ~~two~~ one Business ~~Days after~~ Day of receipt, such ~~notification, the~~ Seller or Originator shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller or the Originator of the ~~Repurchase~~ Purchase Price for the purchase of a Mortgage Loan by ~~the Seller~~such Seller or Originator. After such notification to ~~the~~ such Seller or Originator and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the ~~Seller~~Originator. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of ~~the Seller~~ such Originator and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the ~~Seller~~ Originator the related Mortgage File related to any Mortgage Loan released pursuant to the ~~Mortgage Loan Purchase~~ Assignment, Assumption and Recognition Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the ~~Seller~~ Originator title to and rights under any Mortgage Loan released pursuant to the ~~Mortgage Loan Purchase~~ Servicing Agreement or Section 2.04 of this Agreement, as applicable. The ~~Seller~~ Originator shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the ~~Mortgage Loan Purchase~~ Servicing Agreement or ~~Subsections 2.01(b~~Subsections 2.01 (b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the ~~Mortgage Loan Purchase~~ Servicing Agreement shall be deemed to have been made by the ~~Seller~~ Originator with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2005-A5), Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2005-A5)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the ~~Seller~~ Sponsor may, no later than the date by which such purchase by the ~~Seller~~ Sponsor would otherwise be required, tender to the Trustee (on behalf of the Trust) a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the ~~Seller~~ Sponsor that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section ~~860G(a)(3~~860G(a)(3)(A) of the ~~Code~~Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9), without reliance on the provisions of Treasury Regulation Section 1.860G-2(a)(3) or Treasury Regulation Section 1.860G-2(f)(2) or any other provision that would allow a Mortgage Loan to be treated as a "qualified mortgage" notwithstanding its failure to meet the requirements of Section 860G(a)(3)(A) of the Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9), any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the ~~Seller~~Sponsor, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of ~~Subsection~~ Section 2.02(a). Within two Business Days after such notification, the ~~Seller~~ Sponsor shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the ~~Seller~~ Sponsor of the Repurchase Price for the purchase of a Mortgage Loan by the ~~Seller~~Sponsor. After such notification to the ~~Seller~~ Sponsor and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the ~~Seller~~Sponsor. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the ~~Seller~~ Sponsor and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or the Custodian as agent of the Trustee, as applicable, of a Request for Release for such Mortgage Loan), the Trustee or the Custodian, as agent for the Trustee, shall release to the ~~Seller~~ Sponsor the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the ~~Seller~~ Sponsor title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The ~~Seller~~ Sponsor shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or ~~Subsections~~ Sections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those ~~Subsections~~Sections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the ~~Seller~~ Sponsor with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the ~~Trustee~~Trustee (on behalf of the Trust). The ~~Master~~ Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee and~~ Trustee, who shall then deliver such amended Mortgage Loan Schedule to the Rating Agencies.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (GreenPoint MFT 2006-Ar3), Pooling and Servicing Agreement (GreenPoint MFT 2006-Ar2)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement (or the Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans) or Sections 2.02 or 2.03 of this Agreement, the Mortgage Loan Seller may, no later than the date by which such purchase by the Mortgage Loan Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Mortgage Loan Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; ~~provided~~PROVIDED, ~~however~~HOWEVER, that substitution pursuant to the Mortgage Loan Purchase Agreement (or the Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans) or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup ~~Day;~~ Day provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the ~~Seller,~~ Mortgage Loan Seller in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Mortgage Loan Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Mortgage Loan Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Mortgage Loan Seller. After such notification to the Mortgage Loan Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Mortgage Loan Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Mortgage Loan Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request for ~~Release~~ release for such Mortgage Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the Mortgage Loan Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement (or the Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans) or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the Mortgage Loan Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement (or the Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans) or Section 2.04 of this Agreement, as applicable. The Mortgage Loan Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement (or the Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans) shall be deemed to have been made by the Mortgage Loan Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Structured Asset Mort Inv Inc Mort Pass THR Cert 2002-Ar3), Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the ~~Seller~~ Sponsor may, no later than the date by which such purchase by the ~~Seller~~ Sponsor would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the ~~Seller~~ Sponsor that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or this Section ~~2.04 of this Agreement~~2.04, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the ~~Seller~~Sponsor, in writing, within five Business Days after receipt, whether ~~or not~~ the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of ~~Subsection~~ Section 2.02(a). Within two Business Days after such notification, the ~~Seller~~ Sponsor shall provide to the ~~Trustee~~ Securities Administrator for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the ~~Seller~~ Sponsor of the ~~Repurchase~~ Purchase Price for the purchase of a Mortgage Loan by the ~~Seller~~Sponsor. After such notification to the ~~Seller~~ Sponsor and, if any such excess exists, upon written notification of the receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the ~~Trust Fund~~ Issuing Entity and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the ~~Seller~~Sponsor. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the ~~Seller~~ Sponsor and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the ~~Trust Fund~~Issuing Entity. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the ~~Seller~~ Sponsor the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or this Section ~~2.04 of this Agreement~~2.04, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the ~~Seller~~ Sponsor title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or this Section ~~2.04 of this Agreement~~2.04, as applicable. The ~~Seller~~ Sponsor shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or ~~Subsections~~ Sections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those ~~Subsections~~Sections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the ~~Seller~~ Sponsor with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Trustee, any NIMs Insurer and the Rating Agencies. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Mortgage Loan shall be made unless the Securities Administrator, any NIMs Insurer and the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC provisions.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Merrill Lynch Alternative Note Asset Trust, Series 2007-Oar4), Pooling and Servicing Agreement (Merrill Lynch Alternative Note Asset Trust, Series 2007-Oar4)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after -41- such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Prime Mortgage Trust 2004-2), Pooling and Servicing Agreement (Charlie Mac Trust 2004-1, Mortgage Pass-Through Certificates, Series 2004-1)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Indenture Trustee (or the Custodian, on behalf of the Indenture Trustee) a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "“Substitute Mortgage Loan" ” in this Agreement~~; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase~~ . The Indenture Trustee shall ~~not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would~~ cause the ~~Mortgage Loan~~ Custodian to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) hereof and the Indenture Trustee or shall cause the ~~Custodian, as its agent, shall~~ Custodian to notify the ~~Seller,~~ Seller in ~~writing,~~ writing within five (5) Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of ~~the fifth sentence of Subsection 2.02(a)~~Section 2.02 hereof. Within two (2) Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Securities Administrator for deposit in the ~~Distribution~~ Payment Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of certification from the Securities Administrator that such ~~deposit~~excess has been deposited in the Payment Account, the Indenture Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust ~~Fund~~ Estate and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust ~~Fund~~Estate. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Indenture Trustee and the Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for~~ Indenture Trustee shall cause the ~~Trustee, shall~~ Custodian to release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement ~~or Subsections~~ and Sections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those ~~Subsections~~Sections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Indenture Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Issuer, the Indenture Trustee, the Custodian and the Rating Agencies.

Appears in 2 contracts

Samples: Sale and Servicing Agreement (Peoples Choice Home Loan Securities Corp), Sale and Servicing Agreement (Peoples Choice Home Loan Securities Corp)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Mortgage Loan Seller may, no later than the date by which such purchase by the Mortgage Loan Seller would otherwise be required, tender to the ~~Trustee~~ Trustee, on behalf of the Trust, a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Mortgage Loan Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement and this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Mortgage Loan Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Mortgage Loan Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Mortgage Loan Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Mortgage Loan Seller. After such notification to the Mortgage Loan Seller and, if any such excess exists, upon receipt of such deposit, the ~~Trustee~~ Trustee, on behalf of the Trust, shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the ~~Trust Fund~~ Trust, and accrued interest for such month on the Mortgage Loan ~~for which~~ being repurchased by the ~~substitution is made~~ Mortgage Loan Seller and any Principal Prepayments made thereon during such month shall be the property of the Mortgage Loan Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Mortgage Loan Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the ~~Trust Fund~~Trust. Upon acceptance of the Substitute Mortgage Loan (and delivery to the ~~Custodian~~ Trustee (or Custodian) of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the Mortgage Loan Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the Mortgage Loan Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Mortgage Loan Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Mortgage Loan Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the ~~Trustee~~Trustee on behalf of the Trust. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating ~~Agencies~~Agency.

Appears in 2 contracts

Samples: Trust, Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc), Trust, Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.the

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Prime Mortgage Trust Mortgage Pass-Through Cert Ser 2003-3), Pooling and Servicing Agreement (Structured Asset Mort Inv Ii Inc Prime Mortgage Trust 2003 2)

Substitution of Mortgage Loans. ~~Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing~~ (a) On a ~~Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement~~ Determination Date which is on or ~~Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than~~ before the date by on which ~~such purchase by~~ the Seller would otherwise be ~~required~~required to repurchase a Mortgage Loan under Section 2.02 or 2.04, ~~tender~~ the Seller may deliver to the ~~Trustee a~~ Trust one or more Eligible Substitute Mortgage ~~Loan accompanied by a certificate of an authorized officer~~ Loans in substitution for any one or more of the Defective Mortgage Loans which the Seller ~~that~~ would otherwise be required to repurchase pursuant to Sections 2.02 or 2.04. In connection with any such substitution, the Seller shall calculate the Substitution Adjustment, if any, and shall deposit such amount to the Collection Account by 12:00 p.m. New York City time on the third Business Day prior to the Payment Date in the month succeeding the calendar month in which the related cure period expired. (b) The Seller shall notify the Servicer, the Insurer and the Indenture Trustee in writing not less than five Business Days before the related Determination Date which is on or before the date on which the Seller would otherwise be required to repurchase such Mortgage Loan pursuant to Section 2.02 or 2.04 of its intention to effect a substitution under this Section 2.06. On such Determination Date (the “Substitution Date”), the Seller shall deliver to the Insurer and the Indenture Trustee (1) the Eligible Substitute Mortgage Loans to be substituted for the Defective Mortgage Loans, (2) a list of the Defective Mortgage Loans to be substituted for by such Eligible Substitute Mortgage Loans, (3) an Officer’s Certificate (A) stating that no Event of Servicing Termination shall have occurred and be continuing, (B) stating that all conditions precedent to such substitution specified in subsection (a) have been satisfied and attaching as an exhibit a supplemental Mortgage Loan ~~conforms~~ schedule (the “Supplemental Mortgage Loan Schedule”) setting forth the same type of information as appears on the Mortgage Loan Schedule and representing as to the ~~requirements~~ accuracy thereof and (C) confirming that the representations and warranties contained in Section 2.04 are true and correct in all material respects with respect to the Eligible Substitute Mortgage Loans on and as of such Determination Date, provided that remedies for the inaccuracy of such representations are limited as set forth in Sections 2.02, 2.04 and this Section 2.06 and (4) a certificate stating that cash in the ~~definition~~ amount of ~~"Substitute Mortgage Loan" in this Agreement; provided~~the related Substitution Adjustment, ~~however~~if any, ~~that substitution pursuant~~ has been deposited to the ~~Mortgage Loan Purchase Agreement~~ Collection Account; provided that the Indenture Trustee shall remit to the Depositor or ~~Section 2.04 of this Agreement~~the Insurer, as applicable, ~~in lieu~~ the portion of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, ~~by which the Outstanding Principal Balance as~~ of the ~~next preceding Due Date~~ Substitution Adjustment referred to in clause (d) of the ~~Mortgage Loan for which substitution is being made, after giving effect~~ definition thereof to the ~~Scheduled Principal due~~ extent such amount is incurred by or imposed on ~~such date, exceeds~~ the ~~Outstanding Principal Balance as of such date~~ Depositor or the Insurer. Upon receipt of the ~~Substitute~~ foregoing, the Trust shall release such Defective Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification Loans to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or ~~warranty~~ warranty. (c) Concurrently with the satisfaction of the conditions set forth in ~~form as provided~~ Sections 2.06(a) above and the transfer of such Eligible Substitute Mortgage Loans to ~~it as are necessary~~ the Trust pursuant to ~~vest in~~ Section 2.06(a), Exhibit A to this Agreement shall be deemed to be amended to exclude all Mortgage Loans being replaced by such Eligible Substitute Mortgage Loans and to include the ~~Seller title to and rights under any~~ information set forth on the Supplemental Mortgage Loan ~~released pursuant~~ Schedule with respect to such Eligible Substitute Mortgage Loans, and all references in this Agreement to Mortgage Loans shall include such Eligible Substitute Mortgage Loans and be deemed to be made on or after the ~~Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement~~related substitution date, as ~~applicable. The Seller shall deliver~~ the case may be, as to ~~the Custodian the documents related~~ such Eligible Substitute Mortgage Loans. (d) As to ~~the~~ any Eligible Substitute Mortgage Loan or Loans, the Seller shall cause to be delivered to the Indenture Trustee with respect to such Eligible Substitute Mortgage Loan or Loans such documents and agreements as are required to be held by the Indenture Trustee in accordance with Section 2.01. For any Due Period during which the ~~provisions~~ Seller purchases one or more Defective Mortgage Loans, the Servicer shall determine the amount that shall be deposited by the Seller in the Collection Account at the time of substitution. Any amounts received in respect of the Eligible Substitute Mortgage Loan ~~Purchase Agreement~~ or ~~Subsections 2.01(b)~~ Loans during the Due Period in which the circumstances giving rise to such substitution occur shall not be a part of the Trust and ~~2.02(b)~~ shall not be deposited by the Servicer in the Collection Account. All amounts received by the Servicer during the Due Period in which the circumstances giving rise to such substitution occur in respect of any Defective Mortgage Loan so removed by the Indenture Trustee shall be deposited by the Servicer in the Collection Account. Upon such substitution, the Eligible Substitute Mortgage Loan or Loans shall be subject to the terms of this ~~Agreement~~Agreement in all respects, and the Seller shall be deemed to have made with respect to such Eligible Substitute Mortgage Loan or Loans, as ~~applicable, with~~ of the date of ~~acceptance of~~ substitution, the ~~Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The~~ covenants, representations and warranties set forth in ~~the Mortgage Loan Purchase Agreement shall be deemed to have been made~~ Section 2.04. The procedures applied by the Seller ~~with respect to~~ in selecting each Eligible Substitute Mortgage Loan as shall not be materially adverse to the interests of the ~~date of acceptance of such Mortgage Loan by~~ Indenture Trustee, the ~~Trustee. The Master Servicer shall amend~~ Class A Noteholders or the ~~Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies~~Insurer.

Appears in 2 contracts

Samples: Sale and Servicing Agreement (Terwin Securitization LLC), Sale and Servicing Agreement (First Horizon Asset Securities Inc)

Substitution of Mortgage Loans. ~~Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement~~ On or ~~Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than~~ before the date by on which ~~such purchase by~~ the Seller would otherwise be ~~required~~required to repurchase a Mortgage Loan under Section 2.1(f) or 3.1, ~~tender~~ the Seller may deliver to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Indenture Trustee or the ~~Custodian, as its agent,~~ Custodian on behalf of the Indenture Trustee one or more Eligible Substitute Mortgage Loans in substitution for any one or more of 1. The Seller shall notify the ~~Seller~~Servicer, the Master Servicer, the Securities Administrator and the Indenture Trustee in ~~writing, within~~ writing not less than five (5) Business Days ~~after receipt, whether~~ before the related Determination Date which is on or ~~not~~ before the ~~documents relating~~ date on which the Seller would otherwise be required to ~~the Substitute~~ repurchase such Mortgage Loan ~~satisfy~~ pursuant to Section 2.1(f) or 3.1 of its intention to effect a substitution under this Section 3.2. On such Determination Date (the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan"Substitution Date"), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Indenture Trustee or the Custodian on behalf of the ~~documents related to~~ Indenture Trustee (1) the Eligible Substitute Mortgage ~~Loan in accordance with~~ Loans to be substituted for the ~~provisions~~ Defective Mortgage Loans, (2) a list of the Defective Mortgage ~~Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the~~ Loans to be substituted for by such Eligible Substitute Mortgage ~~Loan deemed to be~~ Loans, (3) an Officer's Certificate (A) stating that the ~~Closing Date for purposes~~ aggregate Principal Balance of ~~the time periods set forth in those Subsections. The representations and warranties set forth in the~~ all Eligible Substitute Mortgage ~~Loan Purchase Agreement shall be deemed to have been made by the Seller~~ Loans (determined with respect to each Eligible Substitute Mortgage Loan as of the ~~date~~ Determination Date on which it was substituted) including the principal balance of ~~acceptance~~ Eligible Substitute Mortgage Loans being substituted on such Determination Date does not exceed an amount equal to 5% of the aggregate Original Class Principal Balance as of the Closing Date, (B) stating that all conditions precedent to such substitution specified in the immediately preceding paragraph have been satisfied and attaching as an exhibit a supplemental Mortgage Loan by schedule (the ~~Trustee. The Master Servicer shall amend~~ "Supplemental Mortgage Loan Schedule") setting forth the same type of information as appears on the Mortgage Loan Schedule and representing as to ~~reflect such substitution~~ the accuracy thereof and ~~shall provide a copy~~ (C) confirming that the representations and warranties contained in Section 3.1 are true and correct in all material respects with respect to the Eligible Substitute Mortgage Loans on and as of such ~~amended~~ Determination Date, PROVIDED that remedies for the inaccuracy of such representations are limited as set forth in Sections 2.1(f), 3.1 and this Section 3.2 and (4) a certificate stating that cash in the amount of the related Substitution Adjustment, if any, has been delivered to the Servicer for deposit in the Collection Account. Upon receipt of the foregoing, pursuant to Section 3.07 of the Servicing Agreement, the Indenture Trustee or the Custodian on behalf of the Indenture Trustee shall release such Defective Mortgage Loans to the Seller. Concurrently with the satisfaction of the conditions set forth in the immediately preceding paragraphs and the transfer of such Eligible Substitute Mortgage Loans to the Indenture Trustee pursuant to Section 2.1, the Mortgage Loan Schedule shall be deemed to be amended to exclude all Mortgage Loans being replaced by such Eligible Substitute Mortgage Loans and to include the ~~Trustee~~ information set forth on the Supplemental Mortgage Loan Schedule with respect to such Eligible Substitute Mortgage Loans, and all references in this Agreement to Mortgage Loans shall include such Eligible Substitute Mortgage Loans and be deemed to be made on or after the ~~Rating Agencies~~related Substitution Date, as the case may be, as to such Eligible Substitute Mortgage Loans.

Appears in 2 contracts

Samples: Servicing Agreement (Renaissance Home Equity Loan Trust 2005-1), Mortgage Loan Sale and Contribution Agreement (Renaissance Home Equity Loan Trust 2005-1)

Substitution of Mortgage Loans. ~~Notwithstanding anything to~~ (a) On a Determination Date within two years following the ~~contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement~~ Closing Date and which is on or ~~Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than~~ before the date by on which ~~such purchase by~~ the Seller would otherwise be ~~required, tender~~ required to ~~the Trustee~~ repurchase a ~~Substitute~~ Mortgage Loan ~~accompanied by a certificate of an authorized officer of~~ under Section 2.02 or 2.04, the Seller ~~that such Substitute Mortgage Loan conforms~~ may deliver to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the ~~Custodian, as its agent,~~ Custodian on behalf of the Trustee one or more Eligible Substitute Mortgage Loans in substitution for any one or more of the Defective Mortgage Loans which the Seller would otherwise be required to repurchase pursuant to Section 2.02 or 2.04. (b) The Seller shall notify the ~~Seller,~~ Servicer and the Trustee in ~~writing, within~~ writing not less than five Business Days ~~after receipt, whether~~ before the related Determination Date which is on or ~~not~~ before the ~~documents relating~~ date on which the Seller would otherwise be required to ~~the Substitute~~ repurchase such Mortgage Loan ~~satisfy~~ pursuant to Section 2.02 or 2.04 of its intention to effect a substitution under this Section 2.05. On such Determination Date (the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan"Substitution Date"), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Trustee or the Custodian on behalf of the ~~documents related to~~ Trustee (1) the Eligible Substitute Mortgage ~~Loan in accordance with~~ Loans to be substituted for the ~~provisions~~ Defective Mortgage Loans, (2) a list of the Defective Mortgage ~~Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the~~ Loans to be substituted for by such Eligible Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made Loans, (3) an Officer's Certificate (A) stating that no failure by the ~~Seller~~ Servicer described in Section 8.01 shall have occurred and be continuing, (B) stating that the aggregate Principal Balance of all Eligible Substitute Mortgage Loans (determined with respect to each Eligible Substitute Mortgage Loan as of the ~~date~~ Determination Date on which it was substituted) including the principal balance of ~~acceptance~~ Eligible Substitute Mortgage Loans being substituted on such Determination Date does not exceed an amount equal to 5% of the aggregate Original Class Principal Balance as of the Closing Date, (C) stating that all conditions precedent to such substitution specified in subsection (a) have been satisfied and attaching as an exhibit a supplemental Mortgage Loan by schedule (the ~~Trustee. The Master Servicer shall amend~~ "Supplemental Mortgage Loan Schedule") setting forth the same type of information as appears on the Mortgage Loan Schedule and representing as to ~~reflect such substitution~~ the accuracy thereof and ~~shall provide a copy~~ (D) confirming that the representations and warranties contained in Section 2.04 are true and correct in all material respects with respect to the Substitute Mortgage Loans on and as of such Determination Date, provided that remedies for the inaccuracy of such representations are limited as set forth in Sections 2.02, 2.04 and this Section 2.05, (4) an Opinion of Counsel to the effect set forth below and (5) a certificate stating that cash in the amount of the related Substitution Adjustment, if any, has been deposited to the Collection Account. Upon receipt of the foregoing, the Trustee or the Custodian on behalf of the Trustee shall release such Defective Mortgage Loans to the Seller. (c) Concurrently with the satisfaction of the conditions set forth in Sections 2.05(a) and (b) above and the transfer of such Eligible Substitute Mortgage Loans to the Trustee pursuant to Section 2.05(a), Exhibit C to this Agreement shall be deemed to be amended to exclude all Mortgage Loans being replaced by such Eligible Substitute Mortgage Loans and to include the information set forth on the Supplemental Mortgage Loan Schedule with respect to such Eligible Substitute Mortgage Loans, and all references in this Agreement to Mortgage Loans shall include such Eligible Substitute Mortgage Loans and be deemed to be made on or after the related Substitution Date, as the case may be, as to such Eligible Substitute Mortgage Loans. (d) In connection with any Mortgage Loan that the Seller is required to purchase or replace, the Seller shall deliver to the Trustee and the ~~Rating Agencies~~Securities Administrator an Opinion of Counsel to the effect that such purchase or substitution will not cause (x) any federal tax to be imposed on the Trust, including, without limitation, any Federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the start-up day" under Section 860G(d)(1) of the Code or (y) any portion of any REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. In the event that such opinion indicates that a repurchase or substitution will result in the imposition of a prohibited transaction tax, give rise to net taxable income or be deemed a contribution to a REMIC after its Startup Day, the Seller shall not be required to repurchase or replace any such Mortgage Loan unless and until the Servicer has determined there is an actual or imminent default with respect thereto or that such defect or breach adversely affects the enforceability of such Mortgage Loan.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Delta Funding Home Equity Loan Tr 99-3 Home Eq as Bk Se 99-3), Pooling and Servicing Agreement (Delta Funding Home Equity Loan Tr 1999-2 Home Equ Loan Ass B)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement, the Subsequent Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement, the Subsequent Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement, the Subsequent Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement, the Subsequent Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement, the Subsequent Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement and the Subsequent Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Bear Stearns ARM Trust 2004-12), Pooling and Servicing Agreement (Bear Stearns ARM Trust, Series 2005-1)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Mortgage Loan Seller may, no later than the date by which such purchase by the Mortgage Loan Seller would otherwise be required, tender to the ~~Trustee~~ Trustee, on behalf of the Trust, a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Mortgage Loan Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement and this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Mortgage Loan Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Mortgage Loan Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such ~~date~~date (a "Substitution Adjustment Amount"), which amount shall be treated for the purposes of this Agreement as if it were the payment by the Mortgage Loan Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Mortgage Loan Seller. After such notification to the Mortgage Loan Seller and, if any such excess exists, upon receipt of such deposit, the ~~Trustee~~ Trustee, on behalf of the Trust, shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the ~~Trust Fund~~ Trust, and accrued interest for such month on the Mortgage Loan ~~for which~~ being repurchased by the ~~substitution is made~~ Mortgage Loan Seller and any Principal Prepayments made thereon during such month shall be the property of the Mortgage Loan Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Mortgage Loan Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the ~~Trust Fund~~Trust. Upon acceptance of the Substitute Mortgage Loan (and delivery to the ~~Custodian~~ Trustee (or Custodian) of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the Mortgage Loan Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the Mortgage Loan Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Mortgage Loan Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Mortgage Loan Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the ~~Trustee~~Trustee on behalf of the Trust. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and ~~the~~ each Rating ~~Agencies~~Agency.

Appears in 2 contracts

Samples: Trust, Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc), Trust, Pooling and Servicing Agreement (Thornburg Mortgage Inc)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to ~~the Mortgage Loan Purchase Agreement or~~ Sections 2.02 or ~~2.03 of this Agreement~~2.03A, ~~the Seller~~ BSMCC may, no later than the date by which such purchase by ~~the Seller~~ BSMCC would otherwise be required, tender to the Custodian on behalf of the Trustee a Substitute Mortgage Loan accompanied by ~~a certificate~~ an Officer's Certificate of ~~an authorized officer of the Seller~~ BSMCC that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan~~" in this Agreement~~"; ~~provided~~PROVIDED, ~~however~~HOWEVER, that substitution pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section 2.04 ~~of this Agreement, as applicable,~~ in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day~~; provided, further, that if the breach would~~ . The Trustee shall cause the ~~Mortgage Loan~~ Custodian to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and ~~the Trustee or the Custodian, as its agent,~~ shall notify the ~~Seller,~~ related Master Servicer in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ third sentence of Subsection 2.02(a). Within two Business Days after such notification, ~~the Seller~~ BSMCC shall provide to the Trustee for deposit in the ~~Distribution~~ appropriate sub-account of the Certificate Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by ~~the Seller~~ BSMCC of the Repurchase Price for the purchase of a Mortgage Loan by ~~the Seller~~BSMCC. After such notification to ~~the Seller~~ BSMCC and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage ~~Loan~~ Loan, which shall thereafter be deemed to be a Group 1 Mortgage Loan, Group 2 Mortgage Loan, Group 3 Mortgage Loan or Group 4 Mortgage Loan, as applicable, hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of ~~the Seller~~BSMCC. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of ~~the Seller~~ BSMCC and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage ~~Loan (and delivery to~~ Loan, the Trustee shall cause the Custodian ~~of a Request for Release for such Mortgage Loan), the Custodian, as agent for the Trustee, shall~~ to release to ~~the Seller~~ BSMCC the related Mortgage File related to any Mortgage Loan released pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section 2.04 ~~of this Agreement, as applicable,~~ and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in ~~the Seller~~ BSMCC title to and rights under any Mortgage Loan released pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section ~~2.04 of this Agreement, as applicable~~2.04. ~~The Seller~~ BSMCC shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of ~~the Mortgage Loan Purchase Agreement or~~ Subsections 2.01(b) and 2.02(b~~) of this Agreement, as applicable~~), with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in ~~the Mortgage Loan Purchase Agreement~~ Exhibit C shall be deemed to have been made by ~~the Seller~~ BSMCC with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Custodian on behalf of the Trustee. The ~~Master Servicer~~ Trustee shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Master Servicer, the Custodian and the Rating Agencies.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc), Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the ~~Seller~~ Sponsor may, no later than the date by which such purchase by the ~~Seller~~ Sponsor would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the ~~Seller~~ Sponsor that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the ~~Seller~~Sponsor, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of ~~Subsection~~ Section 2.02(a). Within two Business Days after such notification, the ~~Seller~~ Sponsor shall provide to the ~~Trustee~~ Securities Administrator for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the ~~Seller~~ Sponsor of the ~~Repurchase~~ Purchase Price for the purchase of a Mortgage Loan by the ~~Seller~~Sponsor. After such notification to the ~~Seller~~ Sponsor and, if any such excess exists, upon written notification of the receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the ~~Trust Fund~~ Issuing Entity and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the ~~Seller~~Sponsor. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the ~~Seller~~ Sponsor and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the ~~Trust Fund~~Issuing Entity. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the ~~Seller~~ Sponsor the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the ~~Seller~~ Sponsor title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The ~~Seller~~ Sponsor shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or ~~Subsections~~ Sections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those ~~Subsections~~Sections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the ~~Seller~~ Sponsor with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Mortgage Loan shall be made unless the Securities Administrator and the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC provisions.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Merrill Lynch Alternative Note Asset Trust, Series 2007-Oar2), Pooling and Servicing Agreement (Merrill Lynch Alternative Note Asset Trust, Series 2007-Oar1)

Substitution of Mortgage Loans. (a) Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or ~~2.03 of this Agreement~~2.03, the ~~Seller~~ Sponsor may, no later than the date by which such purchase by the ~~Seller~~ Sponsor would otherwise be required, tender to the Trustee (on behalf of the Trust) a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the ~~Seller~~ Sponsor that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or this Section ~~2.04 of this Agreement~~2.04, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section ~~860G(a)(3~~860G(a)(3)(A) of the ~~Code~~Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9), without reliance on the provisions of Treasury Regulation Section 1.860G-2(a)(3) or Treasury Regulation Section 1.860G-2(f)(2) or any other provision that would allow a Mortgage Loan to be treated as a "qualified mortgage" notwithstanding its failure to meet the requirements of Section 860G(a)(3)(A) of the Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9), any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the ~~Seller~~Sponsor, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of ~~Subsection~~ Section 2.02(a). Within two Business Days after such notification, the ~~Seller~~ Sponsor shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the ~~Seller~~ Sponsor of the Repurchase Price for the purchase of a Mortgage Loan by the ~~Seller~~Sponsor. After such notification to the ~~Seller~~ Sponsor and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the ~~Seller~~Sponsor. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the ~~Seller~~ Sponsor and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or the Custodian as agent of the Trustee, as applicable, of a Request for Release for such Mortgage Loan), the Trustee or the Custodian, as agent for the Trustee, shall release to the ~~Seller~~ Sponsor the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or this Section ~~2.04 of this Agreement~~2.04, as applicable, and the Trustee (or the Custodian, as agent of the Trustee) shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the ~~Seller~~ Sponsor title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or this Section ~~2.04 of this Agreement~~2.04, as applicable. The ~~Seller~~ Sponsor shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or ~~Subsections~~ Sections 2.01(b) and 2.02(b~~) of this Agreement~~), as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in ~~those Subsections~~such Sections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the ~~Seller~~ Sponsor with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the ~~Trustee~~Trustee (on behalf of the Trust). The ~~Master Servicer~~ Sponsor shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee and~~ Trustee, who shall then deliver such amended Mortgage Loan Schedule to the Rating Agencies. (b) In connection with any substitution of a Mortgage Loan or the cure of a breach of a representation or warranty pursuant to this Section 2.04, the Sponsor shall promptly furnish to the Trustee an officer's certificate, signed by a duly authorized officer of the Sponsor to the effect that such substitution or cure has been made in accordance with the terms and conditions of this Agreement and that all conditions precedent to such substitution or cure have been satisfied, including the delivery to the Trustee of the Substitution Adjustment Amount, as applicable, for deposit into the Distribution Account, together with copies of any Opinion of Counsel required to be delivered pursuant to this Agreement and the related Request for Release, in which the Trustee may rely. Solely for purposes of the Trustee providing an Assessment of Compliance, upon receipt of such documentation, the Trustee shall approve such substitution or cure, as applicable, and which approval shall consist solely of the Trustee's receipt of such documentation and deposits.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Bear Stearns Mortgage Funding Trust 2007-Ar5), Pooling and Servicing Agreement (Bear Stearns Mortgage Funding Trust 2007-Ar5)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to ~~the Mortgage Loan Purchase Agreement or~~ Sections 2.02 or ~~2.03 of this Agreement~~2.03, ~~the Seller~~ EMC may, no later than the date by which such purchase by ~~the Seller~~ EMC would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of ~~the Seller~~ EMC that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan~~" in this Agreement~~"; ~~provided~~PROVIDED, ~~however~~HOWEVER, that substitution pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section 2.04 ~~of this Agreement, as applicable,~~ in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The ~~Custodian, as agent for the Trustee,~~ Trustee shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and ~~the Trustee or the Custodian, as its agent,~~ shall notify ~~the Seller,~~ EMC in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ third sentence of Subsection 2.02(a). Within two Business Days after such notification, ~~the Seller~~ EMC shall provide to the Trustee for deposit in the ~~Distribution~~ Certificate Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by ~~the Seller~~ EMC of the Repurchase Price for the purchase of a Mortgage Loan by ~~the Seller~~EMC. After such notification to ~~the Seller~~ EMC and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of EMC or the ~~Seller~~Master Servicer. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of ~~the Seller~~ EMC and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage ~~Loan (and delivery to the Custodian of a Request for Release for such Mortgage~~ Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to ~~the Seller~~ EMC the related Mortgage File related to any Mortgage Loan released pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section 2.04 ~~of this Agreement, as applicable,~~ and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in ~~the Seller~~ EMC title to and rights under any Mortgage Loan released pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section ~~2.04 of this Agreement, as applicable~~2.04. ~~The Seller~~ EMC shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of ~~the Mortgage Loan Purchase Agreement or~~ Subsections 2.01(b) and 2.02(b~~) of this Agreement, as applicable~~), with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the ~~Mortgage Loan Purchase Agreement~~ applicable Servicing Agreements and Exhibit C shall be deemed to have been made by ~~the Seller~~ EMC with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The ~~Master Servicer~~ Trustee shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Master Servicer and the Rating Agencies.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc), Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc)

Substitution of Mortgage Loans. ~~Notwithstanding anything to~~ (a) On a Determination Date within two (2) years following the ~~contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement~~ Closing Date and which is on or ~~Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than~~ before the date by on which ~~such purchase by~~ the Seller would otherwise be ~~required, tender~~ required to ~~the Trustee~~ repurchase a ~~Substitute~~ Mortgage Loan ~~accompanied by a certificate of an authorized officer of~~ under Section 2.02 or 2.04, the Seller ~~that such Substitute Mortgage Loan conforms~~ may deliver to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the ~~Custodian, as its agent,~~ Custodian on behalf of the Trustee one or more Eligible Substitute Mortgage Loans in substitution for any one or more of the Defective Mortgage Loans which the Seller would otherwise be required to repurchase pursuant to Section 2.02 or 2.04. (b) The Seller shall notify the ~~Seller,~~ Servicer and the Trustee in ~~writing, within~~ writing not less than five (5) Business Days ~~after receipt, whether~~ before the related Determination Date which is on or ~~not~~ before the ~~documents relating~~ date on which the Seller would otherwise be required to ~~the Substitute~~ repurchase such Mortgage Loan ~~satisfy~~ pursuant to Section 2.02 or 2.04 of its intention to effect a substitution under this Section 2.05. On such Determination Date (the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan“Substitution Date”), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Trustee or the Custodian on behalf of the ~~documents related to~~ Trustee (1) the Eligible Substitute Mortgage ~~Loan in accordance with~~ Loans to be substituted for the ~~provisions~~ Defective Mortgage Loans, (2) a list of the Defective Mortgage ~~Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the~~ Loans to be substituted for by such Eligible Substitute Mortgage ~~Loan deemed to be~~ Loans, (3) an Officer’s Certificate (A) stating that the ~~Closing Date for purposes~~ aggregate Principal Balance of ~~the time periods set forth in those Subsections. The representations and warranties set forth in the~~ all Eligible Substitute Mortgage ~~Loan Purchase Agreement shall be deemed to have been made by the Seller~~ Loans (determined with respect to each Eligible Substitute Mortgage Loan as of the ~~date~~ Determination Date on which it was substituted) including the principal balance of ~~acceptance~~ Eligible Substitute Mortgage Loans being substituted on such Determination Date does not exceed an amount equal to 5% of the aggregate Original Class Principal Balance as of the Closing Date, (B) stating that all conditions precedent to such substitution specified in subsection (a) have been satisfied and attaching as an exhibit a supplemental Mortgage Loan by schedule (the ~~Trustee. The Master Servicer shall amend~~ “Supplemental Mortgage Loan Schedule”) setting forth the same type of information as appears on the Mortgage Loan Schedule and representing as to ~~reflect such substitution~~ the accuracy thereof and ~~shall provide a copy~~ (C) confirming that the representations and warranties contained in Section 2.04 are true and correct in all material respects with respect to the Substitute Mortgage Loans on and as of such Determination Date, provided that remedies for the inaccuracy of such representations are limited as set forth in Sections 2.02, 2.04 and this Section 2.05, (4) an Opinion of Counsel to the effect set forth below and (5) a certificate stating that cash in the amount of the related Substitution Adjustment, if any, has been delivered to the Servicer for deposit in the Collection Account. Upon receipt of the foregoing, the Trustee or the Custodian on behalf of the Trustee shall release such Defective Mortgage Loans to the Seller. (c) Concurrently with the satisfaction of the conditions set forth in Sections 2.05(a) and (b) above and the transfer of such Eligible Substitute Mortgage Loans to the Trustee pursuant to Section 2.05(a), Exhibit C to this Agreement shall be deemed to be amended to exclude all Mortgage Loans being replaced by such Eligible Substitute Mortgage Loans and to include the information set forth on the Supplemental Mortgage Loan Schedule with respect to such Eligible Substitute Mortgage Loans, and all references in this Agreement to Mortgage Loans shall include such Eligible Substitute Mortgage Loans and be deemed to be made on or after the related Substitution Date, as the case may be, as to such Eligible Substitute Mortgage Loans. (d) In connection with any Mortgage Loan that the Seller is required to purchase or replace, or any Mortgage Loan that the Seller elects to repurchase pursuant to Section 2.04(b), the Seller shall deliver to the Trustee an Opinion of Counsel to the effect that such purchase, replacement or repurchase will not cause (x) any federal tax to be imposed on the Trust, including, without limitation, any Federal tax imposed on “prohibited transactions” under Section 860F(a)(1) of the Code or on “contributions after the start-up day” under Section 860G(d)(1) of the Code or (y) any portion of any REMIC to fail to qualify as a REMIC at any time that any Certificate is outstanding. In the event that such opinion indicates that a purchase, replacement or repurchase will result in the imposition of a prohibited transaction tax, give rise to net taxable income or be deemed a contribution to a REMIC after its Startup Day, the Seller shall not be required to purchase, replace or repurchase any such Mortgage Loan unless and until the Servicer has determined and given the Seller and the ~~Rating Agencies~~Trustee written notice that there is an actual or imminent default with respect thereto or that such defect or breach adversely affects the enforceability of such Mortgage Loan.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Renaissance Mort Acc Corp Renaissance Home Eq Ln Tr 2004 1), Pooling and Servicing Agreement (Delta Financial Corp)

Substitution of Mortgage Loans. ~~Notwithstanding anything~~ (a) On a Determination Date within two years following the Closing Date and which is on or before the date on which the Initial Beneficial Holder would otherwise be required to repurchase a Mortgage Loan under Section 2.2 or 2.3, the Initial Beneficial Holder may deliver to the ~~contrary~~ Trustee one or more Eligible Substitute Mortgage Loans in ~~this Agreement~~substitution for any one or more of the Defective Mortgage Loans which the Initial Beneficial Holder would otherwise be required to repurchase pursuant to Section 2.2 or 2.3. (b) The Initial Beneficial Holder shall notify the Issuer, the Owner Trustee, the Servicer and the Trustee in ~~lieu of purchasing a~~ writing not less than five Business Days before the related Determination Date which is on or before the date on which the Initial Beneficial Holder would otherwise be required to repurchase such Mortgage Loan pursuant to Section 2.2 or 2.3 of its intention to effect a substitution under this Section. On such Determination Date (the "Substitution Date"), the Initial Beneficial Holder shall deliver to the Issuer: (1) the Eligible Substitute Mortgage Loans to be substituted for the Original Mortgage Loans, (2) a list of the Original Mortgage Loans to be substituted for by such Eligible Substitute Mortgage Loans, (3) an Officers' Certificate: (A) stating that no failure by the Servicer described in Section 7.1 shall have occurred and be continuing, (B) stating that all conditions precedent to such substitution specified in Section 2.4(a) have been satisfied and attaching as an exhibit a supplemental Mortgage Loan schedule (the "Supplemental Mortgage Loan Schedule") setting forth the same type of information as appears on the Mortgage Loan ~~Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender~~ Schedule and representing as to the ~~Trustee a~~ accuracy thereof and (C) confirming that the representations and warranties contained in Section 2.3 are true and correct in all material respects with respect to the Substitute Mortgage ~~Loan accompanied by a certificate~~ Loans on and as of ~~an authorized officer~~ such Determination Date, provided that remedies for the inaccuracy of ~~the Seller that~~ such ~~Substitute Mortgage Loan conforms to the requirements~~ representations are limited as set forth in Sections 2.2, 2.3 and this Section 2.4 and (4) a certificate stating that cash in the ~~definition~~ amount of ~~"Substitute Mortgage Loan" in this Agreement; provided~~the related Substitution Adjustment, ~~however~~if any, ~~that substitution pursuant~~ has been deposited to the ~~Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination~~ Collection Account. Upon receipt of the ~~two-year period beginning on~~ foregoing, the ~~Startup Day; provided, further, that if~~ Issuer shall release such Original Mortgage Loans to the ~~breach would cause~~ Initial Beneficial Holder. (c) Concurrently with the ~~Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3)~~ satisfaction of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner conditions set forth in Section ~~2.02(a~~2.4(a) and (b) above and the ~~Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the~~ grant of such Eligible Substitute Mortgage ~~Loan satisfy the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide~~ Loans to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to ~~the Mortgage Loan Purchase Agreement or~~ Section ~~2.04 of~~ 2.4(a) above, Exhibit A to this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to ~~have been made~~ be amended to exclude all Mortgage Loans being replaced by such Eligible Substitute Mortgage Loans and to include the ~~Seller~~ information set forth on the Supplemental Mortgage Loan Schedule with respect to ~~each~~ such Eligible Substitute Mortgage ~~Loan~~ Loans, and all references in this Agreement to Mortgage Loans shall include such Eligible Substitute Mortgage Loans and be deemed to be made on or after the related Substitution Date, as of the ~~date of acceptance of~~ case may be, as to such Eligible Substitute Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating AgenciesLoans.

Appears in 2 contracts

Samples: Master Servicing Agreement (Gs Mortgage Securities Corp), Master Servicing Agreement (Gs Mortgage Securities Corp)

Substitution of Mortgage Loans. ~~Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement~~ On or ~~Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than~~ before the date by on which ~~such purchase by~~ the Seller would otherwise be ~~required~~required to repurchase a Mortgage Loan under Section 2.1(f) or 3.1, ~~tender~~ the Seller may deliver to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Indenture Trustee or the ~~Custodian, as its agent,~~ Custodian on behalf of the Indenture Trustee one or more Eligible Substitute Mortgage Loans in substitution for any one or more of the Defective Mortgage Loans which the Seller would otherwise be required to repurchase pursuant to Section 2.1(f) or 3.1. The Seller shall notify the ~~Seller~~Servicer, the Master Servicer, the Securities Administrator and the Indenture Trustee in ~~writing, within~~ writing not less than five (5) Business Days ~~after receipt, whether~~ before the related Determination Date which is on or ~~not~~ before the ~~documents relating~~ date on which the Seller would otherwise be required to ~~the Substitute~~ repurchase such Mortgage Loan ~~satisfy~~ pursuant to Section 2.1(f) or 3.1 of its intention to effect a substitution under this Section 3.2. On such Determination Date (the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan“Substitution Date”), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Indenture Trustee or the Custodian on behalf of the ~~documents related to~~ Indenture Trustee (1) the Eligible Substitute Mortgage ~~Loan in accordance with~~ Loans to be substituted for the ~~provisions~~ Defective Mortgage Loans, (2) a list of the Defective Mortgage ~~Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the~~ Loans to be substituted for by such Eligible Substitute Mortgage ~~Loan deemed to be~~ Loans, (3) an Officer’s Certificate (A) stating that the ~~Closing Date for purposes~~ aggregate Principal Balance of ~~the time periods set forth in those Subsections. The representations and warranties set forth in the~~ all Eligible Substitute Mortgage ~~Loan Purchase Agreement shall be deemed to have been made by the Seller~~ Loans (determined with respect to each Eligible Substitute Mortgage Loan as of the ~~date~~ Determination Date on which it was substituted) including the principal balance of ~~acceptance~~ Eligible Substitute Mortgage Loans being substituted on such Determination Date does not exceed an amount equal to 5% of the aggregate Original Class Principal Balance as of the Closing Date, (B) stating that all conditions precedent to such substitution specified in the immediately preceding paragraph have been satisfied and attaching as an exhibit a supplemental Mortgage Loan by schedule (the ~~Trustee. The Master Servicer shall amend~~ “Supplemental Mortgage Loan Schedule”) setting forth the same type of information as appears on the Mortgage Loan Schedule and representing as to ~~reflect such substitution~~ the accuracy thereof and ~~shall provide a copy~~ (C) confirming that the representations and warranties contained in Section 3.1 are true and correct in all material respects with respect to the Eligible Substitute Mortgage Loans on and as of such ~~amended~~ Determination Date, provided that remedies for the inaccuracy of such representations are limited as set forth in Sections 2.1(f), 3.1 and this Section 3.2 and (4) a certificate stating that cash in the amount of the related Substitution Adjustment, if any, has been delivered to the Servicer for deposit in the Collection Account. Upon receipt of the foregoing, pursuant to Section 3.07 of the Servicing Agreement, the Indenture Trustee or the Custodian on behalf of the Indenture Trustee shall release such Defective Mortgage Loans to the Seller. Concurrently with the satisfaction of the conditions set forth in the immediately preceding paragraphs and the transfer of such Eligible Substitute Mortgage Loans to the Indenture Trustee pursuant to Section 2.1, the Mortgage Loan Schedule shall be deemed to be amended to exclude all Mortgage Loans being replaced by such Eligible Substitute Mortgage Loans and to include the ~~Trustee~~ information set forth on the Supplemental Mortgage Loan Schedule with respect to such Eligible Substitute Mortgage Loans, and all references in this Agreement to Mortgage Loans shall include such Eligible Substitute Mortgage Loans and be deemed to be made on or after the ~~Rating Agencies~~related Substitution Date, as the case may be, as to such Eligible Substitute Mortgage Loans.

Appears in 2 contracts

Samples: Mortgage Loan Sale and Contribution Agreement (Renaissance Home Equity Loan Trust 2007-1), Mortgage Loan Sale and Contribution Agreement (Renaissance Home Equity Loan Trust 2006-1, Home Equity Loan Asset-Backed Notes, Series 2006-1)

Substitution of Mortgage Loans. ~~Notwithstanding anything to~~ (a) On a Determination Date within two years following the ~~contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement~~ Closing Date and which is on or ~~Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than~~ before the date by on which ~~such purchase by~~ the Seller would otherwise be ~~required~~required to repurchase a Mortgage Loan under Section 2.02 or 2.04, ~~tender~~ the Seller may deliver to the Trustee a one or more Eligible Substitute Mortgage ~~Loan accompanied by a certificate of an authorized officer~~ Loans in substitution for any one or more of the Defective Mortgage Loans which the Seller ~~that such Substitute Mortgage Loan conforms~~ would otherwise be required to ~~the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution~~ repurchase pursuant to Sections 2.02 or 2.04. (b) The Seller shall notify the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) Servicer and the Trustee ~~or the Custodian, as its agent, shall notify the Seller,~~ in ~~writing, within~~ writing not less than five Business Days ~~after receipt, whether~~ before the related Determination Date which is on or ~~not~~ before the ~~documents relating~~ date on which the Seller would otherwise be required to ~~the Substitute~~ repurchase such Mortgage Loan ~~satisfy~~ pursuant to Section 2.02 or 2.04 of its intention to effect a substitution under this Section. On such Determination Date (the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan“Substitution Date”), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the ~~Custodian~~ Trustee (1) the ~~documents related to the~~ Eligible Substitute Mortgage ~~Loan in accordance with~~ Loans to be substituted for the ~~provisions~~ Original Mortgage Loans, (2) a list of the Original Mortgage ~~Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the~~ Loans to be substituted for by such Eligible Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made Loans, (3) an Officers’ Certificate (A) stating that no failure by the ~~Seller~~ Servicer described in Section 8.01 shall have occurred and be continuing, (B) stating that the aggregate principal balance of all Eligible Substitute Mortgage Loans (determined with respect to each Eligible Substitute Mortgage Loan as of the ~~date~~ Determination Date on which it was substituted) including the principal balance of ~~acceptance~~ Eligible Substitute Mortgage Loans being substituted on such Determination Date does not exceed an amount equal to 5% of the Cut-Off Date Pool Principal Balance, (C) stating that all conditions precedent to such substitution specified in subsection (a) have been satisfied and attaching as an exhibit a supplemental Mortgage Loan by schedule (the ~~Trustee. The Master Servicer shall amend~~ “Supplemental Mortgage Loan Schedule”) setting forth the same type of information as appears on the Mortgage Loan Schedule and representing as to ~~reflect such substitution~~ the accuracy thereof, and ~~shall provide a copy~~ (D) confirming that the representations and warranties contained in Section 2.04 are true and correct in all material respects with respect to the Substitute Mortgage Loans on and as of such Determination Date, provided that remedies for the inaccuracy of such representations are limited as set forth in Sections 2.02, 2.04 and this Section 2.06, (4) an Opinion of Counsel to the effect set forth below and (5) a certificate stating that cash in the amount of the related Substitution Adjustment, if any, has been deposited to the Collection Account. Upon receipt of the foregoing, the Trustee shall release such Original Mortgage Loans to the Seller. (c) Concurrently with the satisfaction of the conditions set forth in Section 2.06 (a) and (b) above and the grant of such Eligible Substitute Mortgage Loans to the Trustee pursuant to Section 2.06(a) above, Exhibit C to this Agreement shall be deemed to be amended to exclude all Mortgage Loans being replaced by such Eligible Substitute Mortgage Loans and to include the information set forth on the Supplemental Mortgage Loan Schedule with respect to such Eligible Substitute Mortgage Loans, and all references in this Agreement to Mortgage Loans shall include such Eligible Substitute Mortgage Loans and be deemed to be made on or after the related Substitution Date, as the case may be, as to such Eligible Substitute Mortgage Loans. (d) In connection with any Mortgage Loan that the Seller is required to purchase or replace, the Seller shall deliver to the Trustee an Opinion of Counsel to the effect that such purchase or substitution will not cause (x) any federal tax to be imposed on the Trust, including without limitation, any Federal tax imposed on “prohibited transactions” under Section 860F(a)(1) of the Code or on “contributions after the start-up day” under Section 860G(d)(1) of the Code, or (y) any portion of the Trust to fail to qualify as a REMIC at any time that any Certificate is outstanding. In the event that such opinion indicates that a repurchase or substitution will result in the imposition of a prohibited transaction tax, give rise to net taxable income or be deemed a contribution to the REMIC after the “start-up day,” the Seller shall not be required to repurchase or replace any such Mortgage Loan unless and until the ~~Rating Agencies~~Servicer has determined there is an actual or imminent default with respect thereto or that such defect or breach adversely affects the enforceability of such Mortgage Loan.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Lehman Abs Corp), Pooling and Servicing Agreement (Structured Asset Securities Corp)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Mortgage Loan Seller may, no later than the date by which such purchase by the Mortgage Loan Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Mortgage Loan Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; ~~provided~~PROVIDED, ~~however~~HOWEVER, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee ~~or the Custodian, as its agent,~~ shall notify the Mortgage Loan Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Mortgage Loan Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Mortgage Loan Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Mortgage Loan Seller. After such notification to the Mortgage Loan Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Mortgage Loan Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Mortgage Loan Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage ~~Loan (and delivery to the Custodian of a Request for Release for such Mortgage~~ Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the Mortgage Loan Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the Mortgage Loan Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Mortgage Loan Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Mortgage Loan Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The ~~Master Servicer~~ Trustee shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Master Servicer and the Rating Agencies.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc), Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc)

Substitution of Mortgage Loans. (a) Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the ~~Seller~~ Sponsor may, no later than the date by which such purchase by the ~~Seller~~ Sponsor would otherwise be required, tender to the Trustee (on behalf of the Trust) a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the ~~Seller~~ Sponsor that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "“Substitute Mortgage Loan" ” in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "“qualified mortgage" ” as defined in Section ~~860G(a)(3~~860G(a)(3)(A) of the ~~Code~~Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9), without reliance on the provisions of Treasury Regulation Section 1.860G-2(a)(3) or Treasury Regulation Section 1.860G-2(f)(2) or any other provision that would allow a Mortgage Loan to be treated as a “qualified mortgage” notwithstanding its failure to meet the requirements of Section 860G(a)(3)(A) of the Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9), any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the ~~Seller~~Sponsor, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of ~~Subsection~~ Section 2.02(a). Within two Business Days after such notification, the ~~Seller~~ Sponsor shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the ~~Seller~~ Sponsor of the Repurchase Price for the purchase of a Mortgage Loan by the ~~Seller~~Sponsor. After such notification to the ~~Seller~~ Sponsor and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the ~~Seller~~Sponsor. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the ~~Seller~~ Sponsor and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or the Custodian as agent of the Trustee, as applicable, of a Request for Release for such Mortgage Loan), the Trustee or the Custodian, as agent for the Trustee, shall release to the ~~Seller~~ Sponsor the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the ~~Seller~~ Sponsor title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The ~~Seller~~ Sponsor shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or ~~Subsections~~ Sections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those ~~Subsections~~Sections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the ~~Seller~~ Sponsor with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the ~~Trustee~~Trustee (on behalf of the Trust). The ~~Master Servicer~~ Sponsor shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee and~~ Trustee, who shall then deliver such amended Mortgage Loan Schedule to the Rating Agencies. (b) In connection with any substitution of a Mortgage Loan or the cure of a breach of a representation or warranty pursuant to this Section 2.04, the Sponsor shall promptly furnish to the Trustee an officer’s certificate, signed by a duly authorized officer of the Sponsor to the effect that such substitution or cure has been made in accordance with the terms and conditions of this Agreement and that all conditions precedent to such substitution or cure have been satisfied, including the delivery to the Trustee of the Substitution Adjustment Amount, as applicable, for deposit into the Distribution Account, together with copies of any Opinion of Counsel required to be delivered pursuant to this Agreement and the related Request for Release, in which the Trustee may rely. Solely for purposes of the Trustee providing an Assessment of Compliance, upon receipt of such documentation, the Trustee shall approve such substitution or cure, as applicable, and which approval shall consist solely of the Trustee’s receipt of such documentation and deposits.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Bear Stearns Mortage Funding Trust 2006-Ar2), Grantor Trust Agreement (Bear Stearns Mortage Funding Trust 2006-Ar2)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "“Substitute Mortgage Loan" ” in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "“qualified mortgage" ” as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the ~~Repurchase~~ Purchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2005-A4), Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2005-A7)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement (or the related Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans) or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement, the related Subsequent Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement (or the related Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans) or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach of a Mortgage Loan representation or warranty would cause ~~the~~ such Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, then any such ~~cure or~~ substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the ~~Seller,~~ Seller in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Paying Agent for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request for Release for such Mortgage Loan), the Trustee (or the Custodian, as ~~agent for the Trustee,~~ its agent) shall release to the Seller the ~~related~~ Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement (or the related Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans) or Section 2.04 of this Agreement, as applicable, and the Trustee shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement (or the related Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans) or Section 2.04 of this Agreement, as applicable. The Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement (or the related Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans) or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans) for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement (or the related Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans) shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The ~~Master Servicer~~ Securities Administrator shall amend the related Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Master Servicer, the Trustee and the Rating Agencies.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Structured Asset Mortgage Investments II Trust 2004-Ar8), Pooling and Servicing Agreement (Structured Asset Mortgage Investments II Trust 2004-Ar8)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Indenture Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "“Substitute Mortgage Loan" ” in this Agreement~~; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase~~ . The Indenture Trustee shall ~~not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would~~ cause the ~~Mortgage Loan~~ Custodian to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Indenture Trustee or shall cause the ~~Custodian, as its agent, shall~~ Custodian to notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of ~~the fifth sentence of Subsection 2.02(a)~~Section 2.02. Within two Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Securities Administrator for deposit in the ~~Distribution~~ Payment Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of certification from the Securities Administrator that such ~~deposit~~excess has been deposited in the Payment Account, the Indenture Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust ~~Fund~~ Estate and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust ~~Fund~~Estate. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Indenture Trustee and the Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for~~ Indenture Trustee shall cause the ~~Trustee, shall~~ Custodian to release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement ~~or Subsections~~ and Sections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those ~~Subsections~~Sections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Indenture Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Issuer, the Indenture Trustee, the Custodian and the Rating Agencies.

Appears in 2 contracts

Samples: Sale and Servicing Agreement (Peoples Choice Home Loan Securities Trust Series 2005-3), Sale and Servicing Agreement (Peoples Choice Home Loan Securities Trust Series 2005-2)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "“Substitute Mortgage Loan" ” in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "“qualified mortgage" ” as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Paying Agent for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies. In connection with any substitution of a Mortgage Loan pursuant to this Section 2.04, the Seller shall, or cause the related Servicer to, furnish to the Securities Administrator an officer’s certificate, signed by a duly authorized officer of the Seller or the related Servicer, as the case may be, to the effect that such substitution has been made in accordance with the terms and conditions of this Agreement and that all conditions precedent to such substitution have been satisfied, together with copies of any Opinion of Counsel required to be delivered pursuant to this Agreement and the related Request for Release. Solely for purposes of the Securities Administrator providing an Assessment of Compliance, upon receipt of such documentation, the Securities Administrator shall approve such substitution and which approval shall be based solely on the Securities Administrator’s receipt of such documentation and deposits. It is understood and agreed that the obligation under this Agreement of the Seller to substitute any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedies against the Seller respecting such breach available to Certificateholders, the Depositor or the Trustee.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Bear Stearns ARM Trust 2006-2), Pooling and Servicing Agreement (Bear Stearns ARM Trust 2006-2)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "“Substitute Mortgage Loan" ” in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "“qualified mortgage" ” as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of ~~Subsection~~ Section 2.02(a). Within two Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Securities Administrator for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or the Custodian as agent of the Trustee, as applicable, of a Request for Release for such Mortgage Loan), the Trustee or the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or ~~Subsections~~ Sections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those ~~Subsections~~Sections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Trustee shall deliver such amended Mortgage Loan Schedule to the Rating Agencies.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Structured Asset Mort Inv Ii Inc Bear Stearns Alt a Tr 05 3), Pooling and Servicing Agreement (Bear Stearns ALT-A Trust, Mortgage Pass-Through Certificates, Series 2005-4)

Substitution of Mortgage Loans. ~~Notwithstanding anything~~ (a) Prior to the ~~contrary~~ Distribution Date which is directly after the date on which the Seller or the Originators would otherwise be required to repurchase a Mortgage Loan under Section 2.02 or 2.04, the Seller or the Originators, as applicable, may deliver to the Trust Administrator one or more Eligible Substitute Mortgage Loans in ~~this Agreement~~substitution for any one or more of the Defective Mortgage Loans which the Seller or the Originators would otherwise be required to repurchase pursuant to Sections 2.02 or 2.04. In connection with any such substitution, the Seller or the Originators, as applicable, shall calculate the Substitution Adjustment, if any, and shall deposit such amount to the Distribution Account on or before the Business Day prior to the Distribution Date in ~~lieu of purchasing a~~ the month succeeding the calendar month during which the related Mortgage Loan became required to be purchased or replaced hereunder. (b) The Seller or the Originators shall notify the Master Servicer, the Depositor and the Trust Administrator in writing on the Determination Date prior to the related Distribution Date which is directly after the date on which the Seller or the related Originator, as applicable, would otherwise be required to repurchase such Mortgage Loan pursuant to ~~the Mortgage Loan Purchase Agreement or Sections~~ Section 2.02 or ~~2.03~~ 2.04 (the "Substitution Date") of its intention to effect a substitution under this ~~Agreement~~Section 2.06. On such Substitution Date, the Seller ~~may, no later than~~ or the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreementrelated Originator, as applicable, ~~in lieu of purchase~~ shall ~~not~~ deliver to the Trust Administrator: (1) the Eligible Substitute Mortgage Loans to be ~~permitted after~~ substituted for the ~~termination~~ Defective Mortgage Loans, (2) a list of the ~~two-year period beginning~~ Defective Mortgage Loans to be substituted for by such Eligible Substitute Mortgage Loans, (3) an Officer's Certificate (A) stating that all conditions precedent to such substitution specified in subsection (a) have been satisfied and attaching as an exhibit a supplemental Mortgage Loan schedule (the "Supplemental Mortgage Loan Schedule") setting forth the same type of information as appears on ~~the Startup Day; provided, further, that if the breach would cause~~ the Mortgage Loan Schedule and representing as to ~~be other than a "qualified mortgage" as defined~~ the accuracy thereof and (B) confirming that the representations and warranties contained in Section ~~860G(a)(3)~~ 2.04 are true and correct in all material respects with respect to the Eligible Substitute Mortgage Loans on and as of ~~the Code~~such Determination Date, ~~any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent~~ provided that remedies for the ~~Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner~~ inaccuracy of such representations are limited as set forth in Sections 2.02, 2.04 and this Section ~~2.02(a~~2.06, and (4) ~~and~~ a certificate stating that cash in the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements amount of the ~~fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount~~related Substitution Adjustment, if any, ~~by which~~ has been deposited to the ~~Outstanding Principal Balance as~~ Distribution Account. Upon receipt of the ~~next preceding Due Date of~~ foregoing, the Trust Administrator shall release such Defective Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan), the Custodian, as agent for the Trustee, shall release to the Seller the or related ~~Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement~~Originator, as applicable~~, and shall execute and deliver all instruments of transfer or assignment~~, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance warranty. (c) Concurrently with the ~~provisions~~ satisfaction of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods conditions set forth in ~~those Subsections. The representations~~ Sections 2.06(a) and ~~warranties set forth in~~ (b) above and the transfer of such Eligible Substitute Mortgage ~~Loan Purchase~~ Loans to the Trust Administrator on behalf of the Trust pursuant to Section 2.06(a), Exhibit B to this Agreement shall be deemed to ~~have been made~~ be amended to exclude all Mortgage Loans being replaced by such Eligible Substitute Mortgage Loans and to include the ~~Seller~~ information set forth on the Supplemental Mortgage Loan Schedule with respect to ~~each~~ such Eligible Substitute Mortgage ~~Loan~~ Loans, and all references in this Agreement to Mortgage Loans shall include such Eligible Substitute Mortgage Loans and be deemed to be made on or after the related Substitution Date, as of the ~~date of acceptance of~~ case may be, as to such Eligible Substitute Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating AgenciesLoans.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (American General MRT Ln Asst BCKD Ps THR CRTS Sr 2003-1), Pooling and Servicing Agreement (American General MRT Ln Asst BCKD Ps THR CRTS Sr 2003-1)

Substitution of Mortgage Loans. ~~Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing~~ (a) On a ~~Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement~~ Determination Date which is on or ~~Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than~~ before the date by on which ~~such purchase by~~ the Seller would otherwise be ~~required~~required to repurchase a Mortgage Loan under Section 2.02 or 2.04, ~~tender~~ the Seller may deliver to the ~~Trustee a~~ Trust one or more Eligible Substitute Mortgage ~~Loan accompanied by a certificate of an authorized officer~~ Loans in substitution for any one or more of the Defective Mortgage Loans which the Seller would otherwise be required to repurchase pursuant to Sections 2.02 or 2.04, provided that ~~such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that~~ no substitution pursuant to Section 2.02 or 2.04 shall be made more than two years after the ~~Mortgage Loan Purchase Agreement~~ Closing Date unless the Seller delivers to the Indenture Trustee and the Insurer (so long as the Notes are Outstanding or ~~Section 2.04~~ any Reimbursement Amounts remain due and owing to the Insurer) an Opinion of ~~this Agreement~~Counsel, ~~as applicable, in lieu~~ which Opinion of ~~purchase~~ Counsel shall not be ~~permitted~~ at the expense of either the Indenture Trustee or the Trust Fund, addressed to the Indenture Trustee and the Insurer (so long as the Notes are Outstanding or any Reimbursement Amounts remain due and owing to the Insurer), to the effect that such substitution will not (i) result in the imposition of the tax on “prohibited transactions” on the Trust Fund or contributions after the ~~termination of the two-year period beginning on the~~ Startup ~~Day; provided~~Date, ~~further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage"~~ as defined in ~~Section 860G(a)(3~~Sections 860F(a)(2) and 860G(D) of the Code, respectively, or (ii) cause any REMIC created under the Trust Agreement to fail to qualify as a REMIC at any time that any Notes are outstanding. A substitution pursuant to Section 2.02 or 2.04 that is made within two years after the Closing Date to replace a “defective obligation” within the meaning of Section 860G(a)(4) of the Code shall not require the Seller to deliver to the Indenture Trustee an Opinion of Counsel. In connection with any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notificationsubstitution, the Seller shall ~~provide~~ calculate the Substitution Adjustment, if any, and shall deposit such amount to the ~~Trustee for deposit~~ Collection Account by 12:00 p.m. New York City time on the third Business Day prior to the Payment Date in the ~~Distribution Account~~ month succeeding the calendar month in which the related cure period expired. (b) The Seller shall notify the Servicer, the Insurer and the Indenture Trustee in writing not less than five Business Days before the related Determination Date which is on or before the date on which the Seller would otherwise be required to repurchase such Mortgage Loan pursuant to Section 2.02 or 2.04 of its intention to effect a substitution under this Section 2.05. On such Determination Date (the “Substitution Date”), the Seller shall deliver to the Insurer, the Servicer, the Depositor and the Indenture Trustee (1) a list of the Eligible Substitute Mortgage Loans to be substituted for the Defective Mortgage Loans, (2) a list of the Defective Mortgage Loans to be substituted for by such Eligible Substitute Mortgage Loans, (3) if such substitution is more than two years after the Closing Date, an Opinion of Counsel that the substitution of the Eligible Substitute Mortgage Loans will not (A) result in the imposition of the tax on “prohibited transactions” on the Trust or (B) cause any REMIC created under the Trust Agreement to fail to qualify as a REMIC at any time the Notes are outstanding, (4) an Officer’s Certificate (A) stating that no Event of Servicer Termination shall have occurred and be continuing, (B) stating that all conditions precedent to such substitution specified in subsection (a) have been satisfied and attaching as an exhibit a supplemental Mortgage Loan schedule (the “Supplemental Mortgage Loan Schedule”) setting forth the same type of information as appears on the Mortgage Loan Schedule and representing as to the accuracy thereof and (C) confirming that the representations and warranties contained in Section 2.04 are true and correct in all material respects with respect to the Eligible Substitute Mortgage Loans on and as of such Determination Date, provided that remedies for the inaccuracy of such representations are limited as set forth in Sections 2.02, 2.04 and this Section 2.05 and (5) a certificate stating that cash in the amount of the related Substitution Adjustment, if any, has been deposited to the Collection Account; provided that the Servicer shall remit to the Indenture Trustee, who shall then remit to the Insurer, the portion of the amount, if any, ~~by which the Outstanding Principal Balance as~~ of the ~~next preceding Due Date~~ Substitution Adjustment referred to in clause (d) of the definition thereof to the extent such amount is incurred by the Insurer. Upon receipt of the foregoing, the Indenture Trustee shall release such Defective Mortgage Loan ~~for which substitution is being made, after giving effect~~ to the ~~Scheduled Principal due on~~ Trust and the Trust shall release such ~~date, exceeds the Outstanding Principal Balance as of such date of the Substitute~~ Defective Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification Loans to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or ~~warranty~~ warranty. (c) Concurrently with the satisfaction of the conditions set forth in ~~form as provided~~ Sections 2.05(a) above and the transfer of such Eligible Substitute Mortgage Loans to ~~it as are necessary~~ the Indenture Trustee pursuant to ~~vest in~~ Section 2.05(a), Exhibit A to this Agreement shall be deemed to be amended to exclude all Mortgage Loans being replaced by such Eligible Substitute Mortgage Loans and to include the ~~Seller title to and rights under any~~ information set forth on the Supplemental Mortgage Loan ~~released pursuant~~ Schedule with respect to such Eligible Substitute Mortgage Loans, and all references in this Agreement to Mortgage Loans shall include such Eligible Substitute Mortgage Loans and be deemed to be made on or after the ~~Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement~~related substitution date, as ~~applicable. The Seller shall deliver~~ the case may be, as to ~~the Custodian the documents related~~ such Eligible Substitute Mortgage Loans. (d) As to ~~the~~ any Eligible Substitute Mortgage Loan or Loans, the Seller shall cause to be delivered to the Indenture Trustee with respect to such Eligible Substitute Mortgage Loan or Loans such documents and agreements as are required to be held by the Indenture Trustee in accordance with Section 2.01. For any Collection Period during which the ~~provisions~~ Seller purchases one or more Defective Mortgage Loans, the Servicer shall determine the amount that shall be deposited by the Seller in the Collection Account at the time of substitution. Any amounts received in respect of the Eligible Substitute Mortgage Loan ~~Purchase Agreement or Subsections 2.01(b)~~ during the Collection Period in which the circumstances giving rise to such substitution occur shall not be a part of the Trust and ~~2.02(b)~~ shall not be deposited by the Servicer in the Collection Account. All amounts received by the Servicer during the Collection Period in which the circumstances giving rise to such substitution occur in respect of any Defective Mortgage Loan so removed by the Indenture Trustee shall be deposited by the Servicer in the Collection Account. Upon such substitution, the Eligible Substitute Mortgage Loan shall be subject to the terms of this ~~Agreement~~Agreement in all respects, and the Seller shall be deemed to have made with respect to such Eligible Substitute Mortgage Loan, as ~~applicable, with~~ of the date of ~~acceptance of~~ substitution, the ~~Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The~~ covenants, representations and warranties set forth in ~~the Mortgage Loan Purchase Agreement shall be deemed to have been made~~ Section 2.04. The procedures applied by the Seller ~~with respect to~~ in selecting each Eligible Substitute Mortgage Loan as shall not be materially adverse to the interests of the ~~date of acceptance of such Mortgage Loan by~~ Indenture Trustee, the ~~Trustee. The Master Servicer shall amend~~ Noteholders, the ~~Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to~~ Certificateholders or the ~~Trustee and the Rating Agencies~~Insurer.

Appears in 2 contracts

Samples: Sale and Servicing Agreement (IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series 2007-H1), Sale and Servicing Agreement (IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series 2006-H4)

Substitution of Mortgage Loans. ~~Notwithstanding anything to the contrary in this Agreement, in~~ (a) In lieu of ~~purchasing a~~ repurchasing any such Mortgage Loan ~~pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement~~as provided above, the Seller ~~may~~(as such, ~~no later than~~ the ~~date by which~~ "Substituting Party") may cause such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be ~~other than~~ removed from the Trust Fund (in which case it shall become a "~~qualified mortgage"~~ Deleted Mortgage Loan") and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations of this Section 2.10. Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to this Section 2.10 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 Substituting Party substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by delivering to the Custodian, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the assignment to the Substituting Party, and such other documents and agreements, with all necessary endorsements thereon, together with an Officers' Certificate stating that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment Amount (as ~~defined~~ described below), if any, in ~~Section 860G(a)(3)~~ connection with such substitution. The Custodian shall acknowledge receipt for such Qualified Substitute Mortgage Loan and, within 45 days thereafter, shall review such Mortgage Files and deliver to the Substituting Party, the Trustee and the Depositor, with respect to such Qualified Substitute Mortgage Loans, a certification substantially in the form of a revised Initial Certification, with any exceptions noted thereon. Within 90 days of the ~~Code~~date of substitution, the Custodian shall deliver to the Substituting Party, the Trustee and the Depositor a certification substantially in the form of a revised Final Certification, with respect to such Qualified Substitute Mortgage Loans, with any exceptions noted thereon. Scheduled Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution shall not be included as part of the Trust Fund and shall be retained by the Substituting Party. For the month of substitution, payments to the Certificateholders shall reflect the collections and recoveries in respect of such ~~cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute~~ Deleted Mortgage Loan in the ~~manner set forth in Section 2.02(a)~~ related Due Period and the ~~Trustee or the Custodian~~Substituting Party shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. Upon such substitution, ~~as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the~~ such Qualified Substitute Mortgage Loan ~~satisfy the requirements~~ shall constitute part of the ~~fifth sentence~~ Trust Fund and shall be subject in all respects to the terms of ~~Subsection 2.02(a)~~this Agreement as of the date of substitution. (b) The Depositor shall amend the related Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan and the substitution of the Qualified Substitute Mortgage Loan or Loans and the Seller shall deliver the amended Mortgage Loan Schedule to the Trustee, the Master Servicer, the Securities Administrator, the Custodian and the Servicer. ~~Within two Business Days after~~ Upon such ~~notification~~substitution, the Qualified Substitute Mortgage Loan shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Qualified Substitute Mortgage Loan, as of the date of substitution, the representations and warranties made pursuant to Section 2.07 with respect to such Mortgage Loan. (c) For any month in which any Substituting Party substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Seller shall ~~provide to~~ deposit the ~~Trustee for deposit in the Distribution Account the amount~~excess (each, a "Substitution Adjustment Amount"), if any, by which the ~~Outstanding~~ aggregate Stated Principal ~~Balance as~~ Balances of all such Deleted Mortgage Loans exceeds the aggregate Stated Principal Balances of the ~~next preceding Due Date~~ Qualified Substitute Mortgage Loans replacing such Deleted Mortgage Loans, together with (i) amounts specified in clause (c) of the definition of Repurchase Price and (ii) one month's interest on such excess amount at the applicable Net Mortgage ~~Loan for which substitution is being made~~Rate. On the date of such substitution, ~~after giving effect~~ the Seller shall deliver or cause to be delivered to the ~~Scheduled Principal due on such date, exceeds~~ Securities Administrator for deposit in the ~~Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which~~ Distribution Account an amount ~~shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification~~ equal to the ~~Seller and~~related Substitution Adjustment Amount, if ~~any such excess exists~~any, and the Custodian, upon receipt of ~~such deposit,~~ the ~~Trustee shall accept such~~ related Qualified Substitute Mortgage Loan ~~which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs~~ or Loans and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release ~~for~~ from the Seller, which includes a written certification of the Seller of delivery of such ~~Mortgage Loan),~~ amount to the ~~Custodian, as agent for the Trustee~~Securities Administrator, shall release to the ~~Seller~~ Substituting Party the related Mortgage File ~~related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement~~ or ~~Section 2.04 of this Agreement, as applicable, and~~ Files. The Trustee shall execute and deliver ~~all~~ such instruments of transfer or assignment, in each case without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreementwarranty, as ~~applicable. The Seller~~ the Substituting Party shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller Trustee with respect to ~~each Substitute~~ any Deleted Mortgage Loan ~~as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule~~ to ~~reflect~~ be released pursuant hereto. (d) In addition, before any such substitution can take effect, the Substituting Party shall obtain at its own expense and ~~shall provide a copy of such amended Mortgage Loan Schedule~~ deliver to the Trustee ~~and~~ an Opinion of Counsel to the ~~Rating Agencies~~effect that such substitution (either specifically or as a class of transactions) shall 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)(l) of the Code or on "contributions after the Startup Date" under Section 860G(d)(l) of the Code, or (b) any REMIC created hereunder 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.

Appears in 2 contracts

Samples: Pooling Agreement (Luminent Mortgage Trust 2006-6), Pooling Agreement (Luminent Mortgage Trust 2006-7)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach of a Mortgage Loan representation or warranty would cause ~~the~~ such Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, then any such ~~cure or~~ substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the ~~Seller,~~ Seller in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Paying Agent for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request for Release for such Mortgage Loan), the Trustee (or the Custodian, as ~~agent for the Trustee,~~ its agent) shall release to the Seller the ~~related~~ Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and the Trustee shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The ~~Master Servicer~~ Securities Administrator shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Master Servicer, the Trustee and the Rating Agencies.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Structured Asset Mortgage Investments Ii Trust Series 2005-Ar1), Pooling and Servicing Agreement (Structured Asset Mortgage Investments II Trust 2005-Ar2)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the related Mortgage Loan Purchase Agreement, the related Servicing Agreement or Sections 2.02 or 2.03 of this Agreement, the Sellers, KKR Financial or the related Underlying Seller (each, for purposes of Section 2.04 only, a “Seller”) may, no later than the date by which such purchase by the related Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the related Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "“Substitute Mortgage Loan" ” in the related Mortgage Loan Purchase Agreement, the related Servicing Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the related Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "“qualified mortgage" ” as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the applicable Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of Subsection 2.02(a). Within two Business Days after such notification, the related Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the related Seller of the ~~Repurchase~~ Purchase Price for the purchase of a Mortgage Loan by the related Seller. After such notification to the ~~Seller~~ related Seller, and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the related Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the ~~Seller~~ related Seller, and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the ~~Seller~~ related Seller, the related Mortgage File related to any Mortgage Loan released pursuant to the related Mortgage Loan Purchase Agreement, the related Servicing Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the related Seller title to and rights under any Mortgage Loan released pursuant to the related Mortgage Loan Purchase Agreement, the related Servicing Agreement or Section 2.04 of this Agreement, as applicable. The related Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the related Mortgage Loan Purchase Agreement, the related Servicing Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the related Mortgage Loan Purchase Agreement and the related Servicing Agreement, as applicable, shall be deemed to have been made by the related Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investor Trust Series MLCC 2005-3), Pooling and Servicing Agreement (Merrill Lynch Mortgage Investor Trust Series MLCC 2005-3)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to ~~the Mortgage Loan Purchase Agreement or~~ Sections 2.02 or ~~2.03 of this Agreement~~2.03A, ~~the Seller~~ EMC may, no later than the date by which such purchase by ~~the Seller~~ EMC would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by ~~a certificate~~ an Officer's Certificate of ~~an authorized officer of the Seller~~ EMC that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan~~" in this Agreement~~"; ~~provided~~PROVIDED, ~~however~~HOWEVER, that substitution pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section 2.04 ~~of this Agreement, as applicable,~~ in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The ~~Custodian, as agent for the Trustee,~~ Trustee shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and ~~the Trustee or the Custodian, as its agent,~~ shall notify the ~~Seller,~~ Master Servicer in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ third sentence of Subsection 2.02(a). Within two Business Days after such notification, ~~the Seller~~ EMC shall ~~provide~~ remit to the ~~Trustee~~ trustee for deposit in the ~~Distribution~~ appropriate subaccount of the Certificate Account the amount, if any, by which the ~~Outstanding~~ Scheduled Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the ~~Outstanding~~ Scheduled Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by ~~the Seller~~ EMC of the Repurchase Price for the purchase of a Mortgage Loan by ~~the Seller~~EMC. After such notification to ~~the Seller~~ EMC, and, if any such excess exists, upon receipt of such ~~deposit~~deposit and of written notification thereof signed by a Servicing Officer, the Trustee shall accept such Substitute Mortgage ~~Loan~~ Loan, which shall thereafter be deemed to be a Group 1 Mortgage Loan or a Group 2 Mortgage Loan, as applicable, hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of ~~the Seller~~EMC. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of ~~the Seller~~ EMC and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and ~~delivery to the Custodian~~ receipt of a properly completed Request for ~~Release for such Mortgage Loan)~~Release, the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to ~~the Seller~~ EMC the related Mortgage File related to any Mortgage Loan released pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section 2.04 ~~of this Agreement, as applicable,~~ and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in ~~the Seller~~ EMC title to and rights under any Mortgage Loan released pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section ~~2.04 of this Agreement, as applicable~~2.04. ~~The Seller~~ EMC shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of ~~the Mortgage Loan Purchase Agreement or~~ Subsections 2.01(b) and 2.02(b~~) of this Agreement, as applicable~~), with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in ~~the Mortgage Loan Purchase Agreement~~ Exhibit C shall be deemed to have been made by ~~the Seller~~ EMC with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The ~~Master Servicer~~ Trustee shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Master Servicer and the Rating ~~Agencies~~Agency.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc), Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc)

Substitution of Mortgage Loans. ~~Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing~~ (a) On a ~~Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement~~ Determination Date which is on or ~~Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than~~ before the date by on which ~~such purchase by~~ the Seller would otherwise be ~~required~~required to repurchase a Mortgage Loan under Section 2.02 or 2.04, ~~tender~~ the Seller may deliver to the ~~Trustee a~~ Trust one or more Eligible Substitute Mortgage ~~Loan accompanied by a certificate of an authorized officer~~ Loans in substitution for any one or more of the Defective Mortgage Loans which the Seller would otherwise be required to repurchase pursuant to Sections 2.02 or 2.04, provided that ~~such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that~~ no substitution pursuant to Section 2.02 or 2.04 shall be made more than two years after the ~~Mortgage Loan Purchase Agreement~~ Closing Date unless the Seller delivers to the Indenture Trustee and the Insurer (so long as the Class A Notes are Outstanding or ~~Section 2.04~~ any Reimbursement Amounts remain due and owing to the Insurer) an Opinion of ~~this Agreement~~Counsel, ~~as applicable, in lieu~~ which Opinion of ~~purchase~~ Counsel shall not be ~~permitted~~ at the expense of either the Indenture Trustee or the Trust Fund, addressed to the Indenture Trustee and the Insurer (so long as the Class A Notes are Outstanding or any Reimbursement Amounts remain due and owing to the Insurer), to the effect that such substitution will not (i) result in the imposition of the tax on “prohibited transactions” on the Trust Fund or contributions after the ~~termination of the two-year period beginning on the~~ Startup ~~Day; provided~~Date, ~~further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage"~~ as defined in ~~Section 860G(a)(3~~Sections 860F(a)(2) and 860G(D) of the Code, respectively, or (ii) cause any REMIC created under the Trust Agreement to fail to qualify as a REMIC at any time that any Notes are outstanding. A substitution pursuant to Section 2.02 or 2.04 that is made within two years after the Closing Date to replace a “defective obligation” within the meaning of Section 860G(a)(4) of the Code shall not require the Seller to deliver to the Indenture Trustee an Opinion of Counsel. In connection with any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notificationsubstitution, the Seller shall ~~provide~~ calculate the Substitution Adjustment, if any, and shall deposit such amount to the ~~Trustee for deposit~~ Collection Account by 12:00 p.m. New York City time on the third Business Day prior to the Payment Date in the ~~Distribution Account~~ month succeeding the calendar month in which the related cure period expired. (b) The Seller shall notify the Servicer, the Insurer and the Indenture Trustee in writing not less than five Business Days before the related Determination Date which is on or before the date on which the Seller would otherwise be required to repurchase such Mortgage Loan pursuant to Section 2.02 or 2.04 of its intention to effect a substitution under this Section 2.05. On such Determination Date (the “Substitution Date”), the Seller shall deliver to the Insurer, the Servicer, the Depositor and the Indenture Trustee (1) a list of the Eligible Substitute Mortgage Loans to be substituted for the Defective Mortgage Loans, (2) a list of the Defective Mortgage Loans to be substituted for by such Eligible Substitute Mortgage Loans, (3) if such substitution is more than two years after the Closing Date, an Opinion of Counsel that the substitution of the Eligible Substitute Mortgage Loans will not (A) result in the imposition of the tax on “prohibited transactions” on the Trust or (B) cause any REMIC created under the Trust Agreement to fail to qualify as a REMIC at any time the Notes are outstanding, (4) an Officer’s Certificate (A) stating that no Event of Servicer Termination shall have occurred and be continuing, (B) stating that all conditions precedent to such substitution specified in subsection (a) have been satisfied and attaching as an exhibit a supplemental Mortgage Loan schedule (the “Supplemental Mortgage Loan Schedule”) setting forth the same type of information as appears on the Mortgage Loan Schedule and representing as to the accuracy thereof and (C) confirming that the representations and warranties contained in Section 2.04 are true and correct in all material respects with respect to the Eligible Substitute Mortgage Loans on and as of such Determination Date, provided that remedies for the inaccuracy of such representations are limited as set forth in Sections 2.02, 2.04 and this Section 2.05 and (5) a certificate stating that cash in the amount of the related Substitution Adjustment, if any, has been deposited to the Collection Account; provided that the Servicer shall remit to the Indenture Trustee, who shall then remit to the Insurer, the portion of the amount, if any, ~~by which the Outstanding Principal Balance as~~ of the ~~next preceding Due Date~~ Substitution Adjustment referred to in clause (d) of the definition thereof to the extent such amount is incurred by the Insurer. Upon receipt of the foregoing, the Indenture Trustee shall release such Defective Mortgage Loan ~~for which substitution is being made, after giving effect~~ to the ~~Scheduled Principal due on~~ Trust and the Trust shall release such ~~date, exceeds the Outstanding Principal Balance as of such date of the Substitute~~ Defective Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification Loans to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or ~~warranty~~ warranty. (c) Concurrently with the satisfaction of the conditions set forth in ~~form as provided~~ Sections 2.05(a) above and the transfer of such Eligible Substitute Mortgage Loans to ~~it as are necessary~~ the Indenture Trustee pursuant to ~~vest in~~ Section 2.05(a), Exhibit A to this Agreement shall be deemed to be amended to exclude all Mortgage Loans being replaced by such Eligible Substitute Mortgage Loans and to include the ~~Seller title to and rights under any~~ information set forth on the Supplemental Mortgage Loan ~~released pursuant~~ Schedule with respect to such Eligible Substitute Mortgage Loans, and all references in this Agreement to Mortgage Loans shall include such Eligible Substitute Mortgage Loans and be deemed to be made on or after the ~~Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement~~related substitution date, as ~~applicable. The Seller shall deliver~~ the case may be, as to ~~the Custodian the documents related~~ such Eligible Substitute Mortgage Loans. (d) As to ~~the~~ any Eligible Substitute Mortgage Loan or Loans, the Seller shall cause to be delivered to the Indenture Trustee with respect to such Eligible Substitute Mortgage Loan or Loans such documents and agreements as are required to be held by the Indenture Trustee in accordance with Section 2.01. For any Collection Period during which the ~~provisions~~ Seller purchases one or more Defective Mortgage Loans, the Servicer shall determine the amount that shall be deposited by the Seller in the Collection Account at the time of substitution. Any amounts received in respect of the Eligible Substitute Mortgage Loan ~~Purchase Agreement or Subsections 2.01(b)~~ during the Collection Period in which the circumstances giving rise to such substitution occur shall not be a part of the Trust and ~~2.02(b)~~ shall not be deposited by the Servicer in the Collection Account. All amounts received by the Servicer during the Collection Period in which the circumstances giving rise to such substitution occur in respect of any Defective Mortgage Loan so removed by the Indenture Trustee shall be deposited by the Servicer in the Collection Account. Upon such substitution, the Eligible Substitute Mortgage Loan shall be subject to the terms of this ~~Agreement~~Agreement in all respects, and the Seller shall be deemed to have made with respect to such Eligible Substitute Mortgage Loan, as ~~applicable, with~~ of the date of ~~acceptance of~~ substitution, the ~~Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The~~ covenants, representations and warranties set forth in ~~the Mortgage Loan Purchase Agreement shall be deemed to have been made~~ Section 2.04. The procedures applied by the Seller ~~with respect to~~ in selecting each Eligible Substitute Mortgage Loan as shall not be materially adverse to the interests of the ~~date of acceptance of such Mortgage Loan by~~ Indenture Trustee, the ~~Trustee. The Master Servicer shall amend~~ Noteholders, the ~~Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to~~ Certificateholders or the ~~Trustee and the Rating Agencies~~Insurer.

Appears in 2 contracts

Samples: Sale and Servicing Agreement (IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series 2006-H2), Sale and Servicing Agreement (Indymac MBS Inc)

Substitution of Mortgage Loans. (a) Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement, the Subsequent Mortgage Loan Purchase Agreement or Sections 2.02 or ~~2.03 of this Agreement~~2.03, the ~~Seller~~ Sponsor may, no later than the date by which such purchase by the ~~Seller~~ Sponsor would otherwise be required, tender to the Trustee (on behalf of the Trust) a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the ~~Seller~~ Sponsor that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement, the Subsequent Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement, the Subsequent Mortgage Loan Purchase Agreement or this Section ~~2.04 of this Agreement~~2.04, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section ~~860G(a)(3~~860G(a)(3)(A) of the ~~Code~~Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9), without reliance on the provisions of Treasury Regulation Section 1.860G-2(a)(3) or Treasury Regulation Section 1.860G-2(f)(2) or any other provision that would allow a Mortgage Loan to be treated as a "qualified mortgage" notwithstanding its failure to meet the requirements of Section 860G(a)(3)(A) of the Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9), any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the ~~Seller~~Sponsor, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of ~~Subsection~~ Section 2.02(a). Within two Business Days after such notification, the ~~Seller~~ Sponsor shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the ~~Seller~~ Sponsor of the Repurchase Price for the purchase of a Mortgage Loan by the ~~Seller~~Sponsor. After such notification to the ~~Seller~~ Sponsor and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the ~~Seller~~Sponsor. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the ~~Seller~~ Sponsor and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or the Custodian as agent of the Trustee, as applicable, of a Request for Release for such Mortgage Loan), the Trustee or the Custodian, as agent for the Trustee, shall release to the ~~Seller~~ Sponsor the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement, the Subsequent Mortgage Loan Purchase Agreement or this Section ~~2.04 of this Agreement~~2.04, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the ~~Seller~~ Sponsor title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement, the Subsequent Mortgage Loan Purchase Agreement or this Section ~~2.04 of this Agreement~~2.04, as applicable. The ~~Seller~~ Sponsor shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement, the Subsequent Mortgage Loan Purchase Agreement or ~~Subsections~~ Sections 2.01(b) and 2.02(b~~) of this Agreement~~), as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in ~~those Subsections~~such Sections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement and the Subsequent Mortgage Loan Purchase Agreement shall be deemed to have been made by the ~~Seller~~ Sponsor with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the ~~Trustee~~Trustee (on behalf of the Trust). The ~~Master Servicer~~ Sponsor shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee and~~ Trustee, who shall then deliver such amended Mortgage Loan Schedule to the Rating Agencies. (b) In connection with any substitution of a Mortgage Loan or the cure of a breach of a representation or warranty pursuant to this Section 2.04, the Sponsor shall promptly furnish to the Trustee an officer's certificate, signed by a duly authorized officer of the Sponsor to the effect that such substitution or cure has been made in accordance with the terms and conditions of this Agreement and that all conditions precedent to such substitution or cure have been satisfied, including the delivery to the Trustee of the Substitution Adjustment Amount, as applicable, for deposit into the Distribution Account, together with copies of any Opinion of Counsel required to be delivered pursuant to this Agreement and the related Request for Release, in which the Trustee may rely. Solely for purposes of the Trustee providing an Assessment of Compliance, upon receipt of such documentation, the Trustee shall approve such substitution or cure, as applicable, and which approval shall consist solely of the Trustee's receipt of such documentation and deposits.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Bear Stearns Mortgage Funding Trust 2007-Ar4), Grantor Trust Agreement (Bear Stearns Mortgage Funding Trust 2007-Ar4)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Master Servicer for deposit in the ~~Distribution~~ Master Servicer Collection Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Prime Mortgage Trust, Mortgage Pass-Through Certificates, Series 2005-2), Pooling and Servicing Agreement (Prime Mortgage Trust 2005-5)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of the Underlying Seller purchasing a Mortgage Loan pursuant to the related Servicing Agreement or the Assignment Agreement, or the Mortgage Loan Seller purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Underlying Seller or the Mortgage Loan Seller, as applicable, may, no later than the date by which such purchase by the Underlying Seller or the Mortgage Loan Seller, as applicable, would otherwise be required, tender to the Trustee a Qualified Substitute Mortgage Loan (with respect to the Underlying Seller) or a Substitute Mortgage Loan (with respect to the Mortgage Loan Seller) accompanied by a certificate of an authorized officer of the Underlying Seller or the Mortgage Loan Seller, as applicable, that such Qualified Substitute Mortgage Loan or Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Qualified Substitute Mortgage Loan" in the related Servicing Agreement or the Assignment Agreement or "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the related Servicing Agreement, the Assignment Agreement, the Mortgage Loan Purchase Agreement or this Section ~~2.04 of this Agreement~~2.04, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Qualified Substitute Mortgage Loan or Substitute Mortgage Loan, as applicable, in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Underlying Seller or the Mortgage Loan Seller, as applicable, in writing, within five Business Days after receipt, whether or not the documents relating to the Qualified Substitute Mortgage Loan or Substitute Mortgage Loan, as applicable, satisfy the requirements of the ~~fifth~~ fourth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Underlying Seller or the Mortgage Loan Seller, as applicable, shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Qualified Substitute Mortgage Loan or Substitute Mortgage Loan, as applicable, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Underlying Seller or the Mortgage Loan Seller, as applicable, of the Repurchase Price for the purchase of a Mortgage Loan by the Underlying Seller or the Mortgage Loan Seller, as applicable. After such notification to the Underlying Seller or the Mortgage Loan Seller, as applicable, and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Qualified Substitute Mortgage Loan or Substitute Mortgage Loan, as applicable, which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Qualified Substitute Mortgage Loan or Substitute Mortgage Loan, as applicable, for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Underlying Seller or the Mortgage Loan Seller, as applicable. The Scheduled Principal on a Qualified Substitute Mortgage Loan or Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Underlying Seller or the Mortgage Loan Seller, as applicable, and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Qualified Substitute Mortgage Loan or Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the Underlying Seller or the Mortgage Loan Seller, as applicable, the related Mortgage File related to any Mortgage Loan released pursuant to the related Servicing Agreement, the Assignment Agreement, the Mortgage Loan Purchase Agreement or this Section ~~2.04 of this Agreement~~2.04, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the Underlying Seller or the Mortgage Loan Seller, as applicable, title to and rights under any Mortgage Loan released pursuant to the related Servicing Agreement, the Assignment Agreement, the Mortgage Loan Purchase Agreement or this Section ~~2.04 of this Agreement~~2.04, as applicable. The Underlying Seller or the Mortgage Loan Seller, as applicable, shall deliver ~~to the Custodian~~ the documents related to the Qualified Substitute Mortgage Loan or Substitute Mortgage Loan, as applicable, in accordance with the provisions of the related Servicing Agreement, the Assignment Agreement with respect to the Underlying Seller and the Mortgage Loan Purchase Agreement with respect to the Mortgage Loan Seller, or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Qualified Substitute Mortgage Loan or Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the related Servicing Agreement, the Assignment Agreement or the Mortgage Loan Purchase ~~Agreement~~ Agreement, as applicable, shall be deemed to have been made by the Underlying Seller or the Mortgage Loan Seller, as applicable, with respect to each Qualified Substitute Mortgage Loan or Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The ~~Master Servicer~~ Trustee shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee and the~~ Rating Agencies.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc), Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to ~~the Mortgage Loan Purchase Agreement or~~ Sections 2.02 or ~~2.03 of this Agreement~~2.03, ~~the Seller~~ ICI Funding may, no later than the date by which such purchase by ~~the Seller~~ ICI Funding would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by ~~a certificate~~ an Officer's Certificate of ~~an authorized officer of the Seller~~ ICI Funding that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan~~" in this Agreement~~"; provided, however, that substitution pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section 2.04 ~~of this Agreement, as applicable,~~ in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The ~~Custodian, as agent for the Trustee,~~ Trustee shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and ~~the Trustee or the Custodian, as its agent,~~ shall notify the ~~Seller,~~ Master Servicer in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ third sentence of Subsection 2.02(a). Within two Business Days after such notification, ~~the Seller~~ ICI Funding shall ~~provide to the Trustee for~~ deposit in the ~~Distribution~~ appropriate subaccount of the Certificate Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by ~~the Seller~~ ICI Funding of the Repurchase Price for the purchase of a Mortgage Loan by ~~the Seller~~ICI Funding. After such notification to ~~the Seller~~ ICI Funding, and, if any such excess exists, upon receipt of such ~~deposit~~deposit and of written notification thereof signed by a Servicing Officer, the Trustee shall accept such Substitute Mortgage ~~Loan~~ Loan, which shall thereafter be deemed to be a Group I Mortgage Loan or Group II Mortgage Loan, as applicable, hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of ~~the Seller~~ICI Funding. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of ~~the Seller~~ ICI Funding and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage ~~Loan (and delivery to the Custodian of a Request for Release for such Mortgage~~ Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to ~~the Seller~~ ICI Funding the related Mortgage File related to any Mortgage Loan released pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section 2.04 ~~of this Agreement, as applicable,~~ and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in ~~the Seller~~ ICI Funding title to and rights under any Mortgage Loan released pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section ~~2.04 of this Agreement, as applicable~~2.04. ~~The Seller~~ ICI Funding shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of ~~the Mortgage Loan Purchase Agreement or~~ Subsections 2.01(b) and 2.02(b~~) of this Agreement, as applicable~~), with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in ~~the Mortgage Loan Purchase Agreement~~ Exhibit C shall be deemed to have been made by ~~the Seller~~ ICI Funding with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The ~~Master Servicer~~ Trustee shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Master Servicer and the Rating Agencies.

Appears in 1 contract

Samples: Underwriting Agreement (Bear Stearns Mortgage Securities Inc)

Substitution of Mortgage Loans. ~~Notwithstanding anything to~~ (a) On a Determination Date within two years following the ~~contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement~~ Closing Date and which is on or ~~Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than~~ before the date by on which ~~such purchase by~~ the Seller would otherwise be ~~required~~required to repurchase a Mortgage Loan under Section 2.02 or 2.04, ~~tender~~ the Seller may deliver to the Trustee a one or more Eligible Substitute Mortgage ~~Loan accompanied by a certificate of an authorized officer~~ Loans in substitution for any one or more of the Defective Mortgage Loans which the Seller ~~that such Substitute Mortgage Loan conforms~~ would otherwise be required to ~~the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution~~ repurchase pursuant to Section 2.02 or 2.04. (b) The Seller shall notify the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) Servicer and the Trustee ~~or the Custodian, as its agent, shall notify the Seller,~~ in ~~writing, within~~ writing not less than five Business Days ~~after receipt, whether~~ before the related Determination Date which is on or ~~not~~ before the ~~documents relating~~ date on which the Seller would otherwise be required to ~~the Substitute~~ repurchase such Mortgage Loan ~~satisfy~~ pursuant to Section 2.02 or 2.04 of its intention to effect a substitution under this Section. On such Determination Date (the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan“Substitution Date”), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the ~~Custodian~~ Trustee (1) the ~~documents related to the~~ Eligible Substitute Mortgage ~~Loan in accordance with~~ Loans to be substituted for the ~~provisions~~ Defective Mortgage Loans, (2) a list of the Defective Mortgage ~~Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the~~ Loans to be substituted for by such Eligible Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made Loans, (3) an Officers’ Certificate (A) stating that no failure by the ~~Seller~~ Servicer described in Section 8.01 shall have occurred and be continuing, (B) stating that the aggregate principal balance of all Eligible Substitute Mortgage Loans (determined with respect to each Eligible Substitute Mortgage Loan as of the ~~date~~ Determination Date on which it was substituted) including the principal balance of ~~acceptance~~ Eligible Substitute Mortgage Loans being substituted on such Determination Date does not exceed an amount equal to 5% of the sum of (i) the Cut-Off Date Pool Principal Balance and (ii) the Original Pre-Funded Amount, (C) stating that all conditions precedent to such substitution specified in subsection (a) have been satisfied and attaching as an exhibit a supplemental Mortgage Loan by schedule (the ~~Trustee. The Master Servicer shall amend~~ “Supplemental Mortgage Loan Schedule”) setting forth the same type of information as appears on the Mortgage Loan Schedule and representing as to ~~reflect such substitution~~ the accuracy thereof, and ~~shall provide a copy~~ (D) confirming that the representations and warranties contained in Section 2.04 are true and correct in all material respects with respect to the Substitute Mortgage Loans on and as of such Determination Date; provided, that remedies for the inaccuracy of such representations are limited as set forth in Sections 2.02, 2.04 and this Section 2.06, (4) an Opinion of Counsel to the effect set forth below and (5) a certificate stating that cash in the amount of the related Substitution Adjustment, if any, has been deposited to the Collection Account. Upon receipt of the foregoing, the Trustee shall release such Defective Mortgage Loans to the Seller. (c) Concurrently with the satisfaction of the conditions set forth in Section 2.06(a) and (b) above and the grant of such Eligible Substitute Mortgage Loans to the Trustee pursuant to Section 2.06(a) above, Exhibit C to this Agreement shall be deemed to be amended to exclude all Mortgage Loans being replaced by such Eligible Substitute Mortgage Loans and to include the information set forth on the Supplemental Mortgage Loan Schedule with respect to such Eligible Substitute Mortgage Loans, and all references in this Agreement to Mortgage Loans shall include such Eligible Substitute Mortgage Loans and be deemed to be made on or after the related Substitution Date, as the case may be, as to such Eligible Substitute Mortgage Loans. (d) In connection with any Mortgage Loan that the Seller is required to purchase or replace, the Seller shall deliver to the Trustee an Opinion of Counsel to the effect that such purchase or substitution will not cause (x) any federal tax to be imposed on the Trust, including without limitation, any Federal tax imposed on “prohibited transactions” under Section 860F(a)(1) of the Code or on “contributions after the start-up day” under Section 860G(d)(1) of the Code, or (y) any portion of the Trust to fail to qualify as a REMIC at any time that any Certificate is outstanding. In the event that such opinion indicates that a repurchase or substitution will result in the imposition of a prohibited transaction tax, give rise to net taxable income or be deemed a contribution to the REMIC after the “start-up day,” the Seller shall not be required to repurchase or replace any such Mortgage Loan unless and until the ~~Rating Agencies~~Servicer has determined there is an actual or imminent default with respect thereto or that such defect or breach adversely affects the enforceability of such Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Lehman Home Equity Loan Trust 2004-3)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the ~~Seller~~ Sponsor may, no later than the date by which such purchase by the ~~Seller~~ Sponsor would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the ~~Seller~~ Sponsor that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the ~~Seller~~Sponsor, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of Subsection 2.02(a). Within two Business Days after such notification, the ~~Seller~~ Sponsor shall provide to the ~~Trustee~~ Securities Administrator for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the ~~Seller~~ Sponsor of the ~~Repurchase~~ Purchase Price for the purchase of a Mortgage Loan by the ~~Seller~~Sponsor. After such notification to the ~~Seller~~ Sponsor and, if any such excess exists, upon written notification of the receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the ~~Trust Fund~~ Issuing Entity and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the ~~Seller~~Sponsor. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the ~~Seller~~ Sponsor and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the ~~Trust Fund~~Issuing Entity. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the ~~Seller~~ Sponsor the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the ~~Seller~~ Sponsor title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The ~~Seller~~ Sponsor shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the ~~Seller~~ Sponsor with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Mortgage Loan shall be made unless the Securities Administrator and the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC provisions.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Alternative Note Asset Trust, Series 2007-A1)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to ~~the Mortgage Loan Purchase Agreement or~~ Sections 2.02 or ~~2.03 of this Agreement~~2.03, ~~the Seller~~ BSMCC or Dime may, no later than the date by which such purchase by ~~the Seller~~ BSMCC or Dime would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of ~~the Seller~~ BSMCC or Dime that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan~~" in this Agreement~~"; ~~provided~~PROVIDED, ~~however~~HOWEVER, that substitution pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section 2.04 ~~of this Agreement, as applicable,~~ in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The ~~Custodian, as agent for the Trustee,~~ Trustee shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and ~~the Trustee or the Custodian, as its agent,~~ shall notify ~~the Seller,~~ BSMCC or Dime in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ third sentence of Subsection 2.02(a). Within two Business Days after such notification, ~~the Seller~~ BSMCC or Dime shall provide to the Trustee for deposit in the ~~Distribution~~ Certificate Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by ~~the Seller~~ BSMCC or Dime of the Repurchase Price for the purchase of a Mortgage Loan by ~~the Seller~~BSMCC or Dime. After such notification to ~~the Seller~~ BSMCC or Dime and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of ~~the Seller~~BSMCC or Dime. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of ~~the Seller~~ BSMCC or Dime and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage ~~Loan (and delivery to the Custodian of a Request for Release for such Mortgage~~ Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to ~~the Seller~~ BSMCC or Dime the related Mortgage File related to any Mortgage Loan released pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section 2.04 ~~of this Agreement, as applicable,~~ and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in ~~the Seller~~ BSMCC or Dime title to and rights under any Mortgage Loan released pursuant to ~~the Mortgage Loan Purchase Agreement~~ this Section 2.04. BSMCC or ~~Section 2.04 of this Agreement, as applicable. The Seller~~ Dime shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of ~~the Mortgage Loan Purchase Agreement or~~ Subsections 2.01(b) and 2.02(b~~) of this Agreement, as applicable~~), with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the ~~Mortgage Loan Purchase~~ applicable Servicing Agreement and Exhibit C shall be deemed to have been made by ~~the Seller~~ BSMCC or Dime with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The ~~Master Servicer~~ Trustee shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Servicer and the Rating Agencies.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to ~~the Mortgage Loan Purchase Agreement or~~ Sections 2.02 or ~~2.03 of this Agreement~~2.05, ~~the Seller~~ EMC may, no later than the date by which such purchase by ~~the Seller~~ EMC would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by ~~a certificate~~ an Officer's Certificate of ~~an authorized officer of the Seller~~ EMC that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan~~" in this Agreement~~"; provided, however, that substitution pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section ~~2.04 of this Agreement, as applicable,~~ 2.06 in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, ~~as agent for~~ pursuant to the ~~Trustee~~terms of the Custodial Agreement, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section ~~2.02(a~~2.03(a) and ~~the Trustee or the Custodian, as its agent,~~ shall notify the ~~Seller,~~ Master Servicer in writing, within ~~five Business Days~~ 30 days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ third sentence of Subsection ~~2.02(a~~2.03(a). Within two (2) Business Days after such notification, ~~the Seller~~ EMC shall ~~provide~~ remit to the Trustee for deposit in the ~~Distribution~~ Certificate Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such dateSubstitution Adjustment, which amount shall be treated for the purposes of this Agreement as if it were the payment by ~~the Seller~~ EMC of the Repurchase Price for the purchase of a Mortgage Loan by ~~the Seller~~EMC. After such notification to ~~the Seller~~ EMC, and, if any such excess exists, upon receipt of such ~~deposit~~deposit and of written notification thereof signed by a Servicing Officer, the Trustee shall accept such Substitute Mortgage ~~Loan~~ Loan, which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of ~~the Seller~~EMC. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of ~~the Seller~~ EMC and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage ~~Loan (and delivery to the Custodian of a Request for Release for such Mortgage~~ Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to EMC, or cause the ~~Seller~~ Custodian to release to EMC, the related Mortgage File related to any Mortgage Loan released pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section ~~2.04 of this Agreement, as applicable,~~ 2.06 and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in ~~the Seller~~ EMC title to and rights under any Mortgage Loan released pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section ~~2.04 of this Agreement, as applicable~~2.06. ~~The Seller~~ EMC shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of ~~the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable~~Subsection 2.03(b), with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in Section 7 of the ~~Mortgage Loan Purchase Agreement~~ Seller Contract shall be deemed to have been made by ~~the Seller~~ EMC with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The ~~Master Servicer~~ Trustee shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Master Servicer, the Rating Agencies and the ~~Rating Agencies~~Certificate Insurers.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Asset Backed Securities Trust 2003 -Abf1)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the ~~Mortgage~~ Loan ~~Purchase~~ Sale Agreement or Sections 2.02 or 2.03 of this Agreement, the Mortgage Loan Seller may, no later than the date by which such purchase by the Mortgage Loan Seller would otherwise be required, tender to the Indenture Trustee a Substitute Mortgage ~~Loan~~ Loan, accompanied by a certificate of an authorized officer of the Mortgage Loan Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "“Substitute Mortgage Loan" ” in this Agreement~~; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase~~ . The Indenture Trustee shall ~~not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would~~ cause the ~~Mortgage Loan~~ Custodian to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Indenture Trustee or shall cause the ~~Custodian, as its agent, shall~~ Custodian to notify the Mortgage Loan Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of ~~the fifth sentence of Subsection 2.02(a)~~Section 2.02. Within two Business Days after such notification, the Mortgage Loan Seller shall provide to the ~~Trustee~~ Master Servicer for deposit in the ~~Distribution~~ Master Servicer Collection Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Mortgage Loan Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Mortgage Loan Seller. After such notification to the Mortgage Loan Seller and, if any such excess exists, upon receipt of certification from the Master Servicer that such ~~deposit~~excess has been deposited in the Master Servicer Collection Account, the Indenture Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust ~~Fund~~ Estate and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Mortgage Loan Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Mortgage Loan Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust ~~Fund~~Estate. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Indenture Trustee and the Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for~~ Indenture Trustee shall cause the ~~Trustee, shall~~ Custodian to release to the Mortgage Loan Seller the related Mortgage File related to any Mortgage Loan released pursuant to the ~~Mortgage~~ Loan ~~Purchase~~ Sale Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Mortgage Loan Seller title to and rights under any Mortgage Loan released pursuant to the ~~Mortgage~~ Loan ~~Purchase~~ Sale Agreement or Section 2.04 of this Agreement, as applicable. The Mortgage Loan Seller shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the ~~Mortgage~~ Loan ~~Purchase~~ Sale Agreement or and Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the ~~Mortgage~~ Loan ~~Purchase~~ Sale Agreement shall be deemed to have been made by the Mortgage Loan Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Indenture Trustee. The ~~Master Servicer~~ Mortgage Loan Seller shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Issuing Entity, the Indenture Trustee, the Master Servicer, the Securities Administrator, the Custodian and the Rating Agencies. In connection with any substitution of a Mortgage Loan or the cure of a breach of a representation or warranty set forth in the Loan Sale Agreement pursuant to this Section 2.04, the Mortgage Loan Seller shall promptly furnish to the Securities Administrator and the Indenture Trustee an officer’s certificate, signed by a duly authorized officer of the Mortgage Loan Seller to the effect that such substitution or cure has been made in accordance with the terms and conditions of this Agreement and that all conditions precedent to such substitution or cure have been satisfied, including the delivery to the Securities Administrator of the amount set forth in this Section 2.04 with respect to any Substitute Mortgage Loan for deposit into the Master Servicer Collection Account, together with copies of any Opinion of Counsel required to be delivered pursuant to this Agreement and the related Request for Release, in which the Securities Administrator and the Indenture Trustee may rely. Solely for purposes of the Securities Administrator providing an Assessment of Compliance, upon receipt of such documentation, the Securities Administrator shall approve such substitution or cure, as applicable, and which approval shall consist solely of the Securities Administrator’s receipt of such documentation and deposits.

Appears in 1 contract

Samples: Sale and Servicing Agreement (Bear Stearns ARM Trust 2006-1)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to ~~the Mortgage Loan Purchase Agreement or~~ Sections 2.02 or ~~2.03 of this Agreement~~2.03A, ~~the Seller~~ BSMCC may, no later than the date by which such purchase by ~~the Seller~~ BSMCC would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by ~~a certificate~~ an Officer's Certificate of ~~an authorized officer of the Seller~~ BSMCC that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan~~" in this Agreement~~"; ~~provided~~PROVIDED, ~~however~~HOWEVER, that substitution pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section 2.04 ~~of this Agreement, as applicable,~~ in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The ~~Custodian, as agent for the Trustee,~~ Trustee shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and ~~the Trustee or the Custodian, as its agent,~~ shall notify the ~~Seller,~~ related Master Servicer in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ third sentence of Subsection 2.02(a). Within two Business Days after such notification, ~~the Seller~~ BSMCC shall provide to the Trustee for deposit in the ~~Distribution~~ appropriate sub-account of the Certificate Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by ~~the Seller~~ BSMCC of the Repurchase Price for the purchase of a Mortgage Loan by ~~the Seller~~BSMCC. After such notification to ~~the Seller~~ BSMCC and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage ~~Loan~~ Loan, which shall thereafter be deemed to be a Sub-Group 1A, Sub-Group 1B, Sub-Group 2A, Sub-Group 2B or Sub-Group 2C Mortgage ~~Loan~~ Loan, as applicable, hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of ~~the Seller~~BSMCC. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of ~~the Seller~~ BSMCC and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage ~~Loan (and delivery to the Custodian of a Request for Release for such Mortgage~~ Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to ~~the Seller~~ BSMCC the related Mortgage File related to any Mortgage Loan released pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section 2.04 ~~of this Agreement, as applicable,~~ and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in ~~the Seller~~ BSMCC title to and rights under any Mortgage Loan released pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section ~~2.04 of this Agreement, as applicable~~2.04. ~~The Seller~~ BSMCC shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of ~~the Mortgage Loan Purchase Agreement or~~ Subsections 2.01(b) and 2.02(b~~) of this Agreement, as applicable~~), with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in ~~the Mortgage Loan Purchase Agreement~~ Exhibit C shall be deemed to have been made by ~~the Seller~~ BSMCC with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The ~~Master Servicer~~ Trustee shall amend the Mortgage Loan ~~Schedule~~ Schedules to reflect such substitution and shall provide a copy of such amended Mortgage Loan ~~Schedule~~ Schedules to the ~~Trustee~~ applicable Master Servicer, and the Rating Agencies.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc)

Substitution of Mortgage Loans. ~~Notwithstanding anything to the contrary in this Agreement, in~~ (a) In lieu of ~~purchasing a~~ repurchasing any such Mortgage Loan ~~pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement~~as provided above, the Seller ~~may~~(as such, ~~no later than~~ the ~~date by which~~ "SUBSTITUTING PARTY") may cause such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be ~~other than~~ removed from the Trust Fund (in which case it shall become a "~~qualified mortgage"~~ DELETED MORTGAGE LOAN") and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations of this Section 2.10. Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to this Section 2.10 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 Substituting Party substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by delivering to the Custodian, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the assignment to the Substituting Party, and such other documents and agreements, with all necessary endorsements thereon, together with an Officers' Certificate stating that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment Amount (as ~~defined~~ described below), if any, in ~~Section 860G(a)(3)~~ connection with such substitution. The Custodian shall acknowledge receipt for such Qualified Substitute Mortgage Loan and, within 45 days thereafter, shall review such Mortgage Files and deliver to the Substituting Party, the Trustee and the Depositor, with respect to such Qualified Substitute Mortgage Loans, a certification substantially in the form of a revised Initial Certification, with any exceptions noted thereon. Within 90 days of the ~~Code~~date of substitution, the Custodian shall deliver to the Substituting Party, the Trustee and the Depositor a certification substantially in the form of a revised Final Certification, with respect to such Qualified Substitute Mortgage Loans, with any exceptions noted thereon. Scheduled Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution shall not be included as part of the Trust Fund and shall be retained by the Substituting Party. For the month of substitution, payments to the Certificateholders shall reflect the collections and recoveries in respect of such ~~cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute~~ Deleted Mortgage Loan in the ~~manner set forth in Section 2.02(a)~~ related Due Period and the ~~Trustee or the Custodian~~Substituting Party shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. Upon such substitution, ~~as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the~~ such Qualified Substitute Mortgage Loan ~~satisfy the requirements~~ shall constitute part of the ~~fifth sentence~~ Trust Fund and shall be subject in all respects to the terms of ~~Subsection 2.02(a)~~this Agreement as of the date of substitution. (b) The Depositor shall amend the related Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan and the substitution of the Qualified Substitute Mortgage Loan or Loans and the Seller shall deliver the amended Mortgage Loan Schedule to the Trustee, the Master Servicer, the Securities Administrator, the Custodian and the Servicer. ~~Within two Business Days after~~ Upon such ~~notification~~substitution, the Qualified Substitute Mortgage Loan shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Qualified Substitute Mortgage Loan, as of the date of substitution, the representations and warranties made pursuant to Section 2.7 with respect to such Mortgage Loan. (c) For any month in which any Substituting Party substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Seller shall ~~provide to~~ deposit the ~~Trustee for deposit in the Distribution Account the amount~~excess (each, a "SUBSTITUTION ADJUSTMENT AMOUNT"), if any, by which the ~~Outstanding~~ aggregate Scheduled Principal ~~Balance as~~ Balances of all such Deleted Mortgage Loans exceeds the aggregate Scheduled Principal Balances of the ~~next preceding Due Date~~ Qualified Substitute Mortgage Loans replacing such Deleted Mortgage Loans, together with (i) amounts specified in clause (c) of the definition of Repurchase Price and (ii) one month's interest on such excess amount at the applicable Net Mortgage ~~Loan for which substitution is being made~~Rate. On the date of such substitution, ~~after giving effect~~ the Seller shall deliver or cause to be delivered to the ~~Scheduled Principal due on such date, exceeds~~ Securities Administrator for deposit in the ~~Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which~~ Distribution Account an amount ~~shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification~~ equal to the ~~Seller and~~related Substitution Adjustment Amount, if ~~any such excess exists~~any, and the Custodian, upon receipt of ~~such deposit,~~ the ~~Trustee shall accept such~~ related Qualified Substitute Mortgage Loan ~~which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs~~ or Loans and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release ~~for~~ from the Seller, which includes a written certification of the Seller of delivery of such ~~Mortgage Loan),~~ amount to the ~~Custodian, as agent for the Trustee~~Securities Administrator, shall release to the ~~Seller~~ Substituting Party the related Mortgage File ~~related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement~~ or ~~Section 2.04 of this Agreement, as applicable, and~~ Files. The Custodian shall execute and deliver ~~all~~ such instruments of transfer or assignment, in each case without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreementwarranty, as ~~applicable. The Seller~~ the Substituting Party shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller Trustee with respect to ~~each Substitute~~ any Deleted Mortgage Loan ~~as of~~ to be released pursuant hereto. (d) In addition, the ~~date of acceptance of such Mortgage Loan by~~ Trustee shall cause the ~~Trustee. The Master Servicer shall amend the Mortgage Loan Schedule~~ Substituting Party to ~~reflect such substitution~~ obtain at its own expense and ~~shall provide a copy of such amended Mortgage Loan Schedule~~ deliver to the Trustee ~~and~~ an Opinion of Counsel to the ~~Rating Agencies~~effect that such substitution (either specifically or as a class of transactions) shall 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)(l) of the Code or on "contributions after the Startup Date" under Section 860G(d)(l) of the Code, or (b) any REMIC created hereunder 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.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Lares Asset Securitization, Inc.)

Substitution of Mortgage Loans. (a) Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to Sections 2.02 or 2.03, the Mortgage Loan ~~Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the~~ Seller may, no later than the date by which such purchase by the Mortgage Loan Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Mortgage Loan Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan~~" in this Agreement~~"; provided, however, that substitution pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section 2.04 ~~of this Agreement, as applicable,~~ in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The ~~Custodian, as agent for the Trustee,~~ Trustee or Custodian shall examine the Mortgage File for any such Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and ~~the Trustee or the Custodian, as its agent,~~ shall notify the ~~Seller,~~ Mortgage Loan Seller and the Master Servicer in writing, within five Business Days after receipt, whether or not the documents relating to ~~the~~ such Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ third sentence of Subsection 2.02(a). Within two Business Days after such notification, the Mortgage Loan Seller shall provide to the Trustee for deposit in the ~~Distribution~~ Certificate Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Mortgage Loan Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Mortgage Loan Seller. After such notification to the Mortgage Loan Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Mortgage Loan Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Mortgage Loan Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage ~~Loan (and delivery to~~ Loan, the Trustee shall release or direct the Custodian ~~of a Request for Release for such Mortgage Loan), the Custodian, as agent for the Trustee, shall~~ to release to the Mortgage Loan Seller the related Mortgage File related to any Mortgage Loan released pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section 2.04 ~~of this Agreement, as applicable,~~ and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the Mortgage Loan Seller title to and rights under any Mortgage Loan released pursuant to ~~the~~ this Section 2.04. The Mortgage Loan ~~Purchase Agreement or Section 2.04 of this Agreement, as applicable. The~~ Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of ~~the Mortgage Loan Purchase Agreement or~~ Subsections 2.01(b) and 2.02(b~~) of this Agreement, as applicable~~), with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in ~~the Mortgage Loan Purchase Agreement~~ Exhibit C shall be deemed to have been made by the Mortgage Loan Seller with respect to each Substitute Mortgage Loan as of the date of acceptance by the Trustee of such Mortgage ~~Loan by the Trustee~~Loan. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Trustee, the Custodian and the Rating Agencies. (b) Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Xxxxxx Mortgage Loan or a First Horizon Mortgage Loan pursuant to Sections 2.02 or 2.03, Xxxxxx or First Horizon, as applicable, may substitute a Substitute Mortgage Loan for the related Mortgage Loan in accordance with the Xxxxxx Purchase Agreement or the First Horizon Purchase Agreement, as applicable; provided, however, that substitution in lieu of purchase shall not be permitted after the two-year period beginning on the Startup Day. Upon acceptance of such Substitute Mortgage Loan, the Trustee shall release or direct the Custodian to release to Xxxxxx or First Horizon, as applicable, the related Mortgage File related to any related Mortgage Loan released pursuant to this Section 2.04 and shall execute and deliver all instruments of transfer or assignment, without recourse, in form as provided to it as are necessary to vest in Xxxxxx or First Horizon, as applicable, title to and rights under any related Mortgage Loan released pursuant to this Section 2.04. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee, the Custodian and the Rating Agencies.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to ~~the Mortgage Loan Purchase Agreement or~~ Sections 2.02 or ~~2.03 of this Agreement~~2.04, ~~the Seller~~ BSMCC may, no later than the date by which such purchase by ~~the Seller~~ BSMCC would otherwise be required, tender to the Custodian on behalf of the Certificate Trustee a Substitute Mortgage Loan accompanied by ~~a certificate~~ an Officer's Certificate of ~~an authorized officer of the Seller~~ BSMCC that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan~~" in this Agreement~~"; provided, however, that substitution pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section ~~2.04 of this Agreement, as applicable,~~ 2.05 in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day~~; provided, further, that if the breach would~~ . The Certificate Trustee shall cause the ~~Mortgage Loan~~ Custodian to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and ~~the Trustee or the Custodian, as its agent,~~ shall notify the ~~Seller,~~ related Master Servicer in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements ~~of the fifth sentence of Subsection~~ set forth in Section 2.02(a). Within two Business Days after such notification, ~~the Seller shall~~ BSMCC is required to provide to the Certificate Trustee for deposit in the ~~Distribution~~ Certificate Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by ~~the Seller~~ BSMCC of the Repurchase Price for the purchase of a Mortgage Loan by ~~the Seller~~BSMCC. After such notification to ~~the Seller~~ BSMCC and, if any such excess exists, upon receipt of such deposit, the Certificate Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies.such

Appears in 1 contract

Samples: Pooling and Servicing Agreement (CMC Securities Corp Iii)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, ~~the Seller~~ EMC (on its own behalf and on behalf of Master Funding) may, no later than the date by which such purchase by ~~the Seller~~ EMC (on its behalf and on behalf of Master Funding) would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "“Substitute Mortgage Loan" ” in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "“qualified mortgage" ” as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The related Custodian, ~~as agent for~~ on behalf of the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the related Custodian, as on its ~~agent~~behalf, shall notify ~~the Seller~~EMC (on its own behalf and on behalf of Master Funding), in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of ~~the fifth sentence of~~ Subsection ~~2.02(a~~2.01(b). Within two Business Days after such notification, ~~the Seller~~ EMC (on its own behalf and on behalf of Master Funding) shall provide to the ~~Trustee~~ Paying Agent for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by ~~the Seller~~ EMC (on its own behalf and on behalf of Master Funding) of the ~~Repurchase~~ Purchase Price for the purchase of a Mortgage Loan by ~~the Seller~~EMC (on its behalf and on behalf of Master Funding). After such notification to ~~the Seller~~ EMC (on its own behalf and on behalf of Master Funding) and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of ~~the Seller~~EMC (on its own behalf and on behalf of Master Funding). The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the related Custodian of a Request for Release for such Mortgage Loan), the related Custodian, ~~as agent for~~ on behalf of the Trustee, shall release to ~~the Seller~~ EMC (on its own behalf and on behalf of Master Funding) the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and the Trustee shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the related Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The ~~Master Servicer~~ Securities Administrator shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Trustee, the Master Servicer, EMC (on its own behalf and on behalf of Master Funding), the related Custodian and the Rating Agencies. In connection with any substitution of a Mortgage Loan pursuant to this Section 2.04, EMC (on its own behalf and on behalf of Master Funding) shall, or cause the related Servicer to, furnish to the Securities Administrator and the Master Servicer an Officer’s Certificate, signed by a duly authorized officer of EMC (on its own behalf and on behalf of Master Funding) or the related Servicer, as the case may be, to the effect that such substitution has been made in accordance with the terms and conditions of this Agreement and that all conditions precedent to such substitution have been satisfied, together with copies of any Opinion of Counsel required to be delivered pursuant to this Agreement and the related Request for Release. Solely for purposes of the Securities Administrator providing an Assessment of Compliance, upon receipt of such documentation, the Securities Administrator shall approve such substitution and which approval shall be based solely on the Securities Administrator’s receipt of such documentation and deposits. It is understood and agreed that the obligation under this Agreement of the Seller to substitute any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedies against EMC (on its own behalf and on behalf of Master Funding) respecting such breach available to Certificateholders, the Depositor or the Trustee.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns ARM Trust 2007-4)

Substitution of Mortgage Loans. ~~Notwithstanding anything to the contrary in this Agreement, in~~ (a) In lieu of ~~purchasing a~~ repurchasing any such Mortgage Loan ~~pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement~~as provided above, the Seller ~~may~~(as such, ~~no later than~~ the ~~date by which~~ "Substituting Party") may cause such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be ~~other than~~ removed from the Trust Fund (in which case it shall become a "~~qualified mortgage"~~ Deleted Mortgage Loan") and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations of this Section 2.10. Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to this Section 2.10 must be effected prior to the last Business Day that is within 105 two years after the Closing Date. As to any Deleted Mortgage Loan for which the Substituting Party substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by delivering to the Custodian, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the assignment to the Substituting Party, and such other documents and agreements, with all necessary endorsements thereon, together with an Officers' Certificate stating that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment Amount (as ~~defined~~ described below), if any, in ~~Section 860G(a)(3)~~ connection with such substitution. The Custodian shall acknowledge receipt for such Qualified Substitute Mortgage Loan and, within 45 days thereafter, shall review such Mortgage Files and deliver to the Substituting Party, the Trustee and the Depositor, with respect to such Qualified Substitute Mortgage Loans, a certification substantially in the form of a revised Initial Certification, with any exceptions noted thereon. Within 90 days of the ~~Code~~date of substitution, the Custodian shall deliver to the Substituting Party, the Trustee and the Depositor a certification substantially in the form of a revised Final Certification, with respect to such Qualified Substitute Mortgage Loans, with any exceptions noted thereon. Scheduled Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution shall not be included as part of the Trust Fund and shall be retained by the Substituting Party. For the month of substitution, payments to the Certificateholders shall reflect the collections and recoveries in respect of such ~~cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute~~ Deleted Mortgage Loan in the ~~manner set forth in Section 2.02(a)~~ related Due Period and the ~~Trustee or the Custodian~~Substituting Party shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. Upon such substitution, ~~as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the~~ such Qualified Substitute Mortgage Loan ~~satisfy the requirements~~ shall constitute part of the ~~fifth sentence~~ Trust Fund and shall be subject in all respects to the terms of ~~Subsection 2.02(a)~~this Agreement as of the date of substitution. (b) The Depositor shall amend the related Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan and the substitution of the Qualified Substitute Mortgage Loan or Loans and the Seller shall deliver the amended Mortgage Loan Schedule to the Trustee, the Master Servicer, the Securities Administrator, the Custodian and the Servicer. ~~Within two Business Days after~~ Upon such ~~notification~~substitution, the Qualified Substitute Mortgage Loan shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Qualified Substitute Mortgage Loan, as of the date of substitution, the representations and warranties made pursuant to Section 2.07 with respect to such Mortgage Loan. (c) For any month in which any Substituting Party substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Seller shall ~~provide to~~ deposit the ~~Trustee for deposit in the Distribution Account the amount~~excess (each, a "Substitution Adjustment Amount"), if any, by which the ~~Outstanding~~ aggregate Stated Principal ~~Balance as~~ Balances of all such Deleted Mortgage Loans exceeds the aggregate Stated Principal Balances of the ~~next preceding Due Date~~ Qualified Substitute Mortgage Loans replacing such Deleted Mortgage Loans, together with (i) amounts specified in clause (c) of the definition of Repurchase Price and (ii) one month's interest on such excess amount at the applicable Net Mortgage ~~Loan for which substitution is being made~~Rate. On the date of such substitution, ~~after giving effect~~ the Seller shall deliver or cause to be delivered to the ~~Scheduled Principal due on such date, exceeds~~ Securities Administrator for deposit in the ~~Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which~~ Distribution Account an amount ~~shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification~~ equal to the ~~Seller and~~related Substitution Adjustment Amount, if ~~any such excess exists~~any, and the Custodian, upon receipt of ~~such deposit,~~ the ~~Trustee shall accept such~~ related Qualified Substitute Mortgage Loan ~~which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs~~ or Loans and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release ~~for~~ from the Seller, which includes a written certification of the Seller of delivery of such ~~Mortgage Loan),~~ amount to the ~~Custodian, as agent for the Trustee~~Securities Administrator, shall release to the ~~Seller~~ Substituting Party the related Mortgage File ~~related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement~~ or ~~Section 2.04 of this Agreement, as applicable, and~~ Files. The Trustee shall execute and deliver ~~all~~ such instruments of transfer or assignment, in each case without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreementwarranty, as ~~applicable. The Seller~~ the 106 Substituting Party shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller Trustee with respect to ~~each Substitute~~ any Deleted Mortgage Loan ~~as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule~~ to ~~reflect~~ be released pursuant hereto. (d) In addition, before any such substitution can take effect, the Substituting Party shall obtain at its own expense and ~~shall provide a copy of such amended Mortgage Loan Schedule~~ deliver to the Trustee ~~and~~ an Opinion of Counsel to the ~~Rating Agencies~~effect that such substitution (either specifically or as a class of transactions) shall 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)(l) of the Code or on "contributions after the Startup Date" under Section 860G(d)(l) of the Code, or (b) any REMIC created hereunder 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.

Appears in 1 contract

Samples: Pooling Agreement (Luminent Mortgage Trust 2007-2)

Substitution of Mortgage Loans. ~~Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing~~ (a) On a ~~Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement~~ Determination Date which is on or ~~Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than~~ before the date by on which ~~such purchase by~~ the Seller would otherwise be ~~required~~required to repurchase a Mortgage Loan under Section 2.02 or 2.04, ~~tender~~ the Seller may deliver to the ~~Trustee a~~ Trust one or more Eligible Substitute Mortgage ~~Loan accompanied by a certificate of an authorized officer~~ Loans in substitution for any one or more of the Defective Mortgage Loans which the Seller would otherwise be required to repurchase pursuant to Sections 2.02 or 2.04, provided that ~~such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that~~ no substitution pursuant to Section 2.02 or 2.04 shall be made more than two years after the ~~Mortgage Loan Purchase Agreement or Section 2.04~~ Closing Date unless the Seller delivers to the Indenture Trustee an Opinion of ~~this Agreement~~Counsel, ~~as applicable, in lieu~~ which Opinion of ~~purchase~~ Counsel shall not be ~~permitted~~ at the expense of either the Indenture Trustee or the Trust Fund, addressed to the Indenture Trustee, to the effect that such substitution will not (i) result in the imposition of the tax on "prohibited transactions" on the Trust Fund or contributions after the ~~termination of the two-year period beginning on the~~ Startup ~~Day; provided~~Date, ~~further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage"~~ as defined in ~~Section 860G(a)(3~~Sections 860F(a)(2) and 860G(D) of the Code, respectively, or (ii) cause any REMIC created under this Agreement to fail to qualify as a REMIC at any time that any Notes are outstanding. A substitution pursuant to Section 2.02 or 2.04 that is made within two years after the Closing Date to replace a "defective obligation" within the meaning of Section 860G(a)(4) of the Code shall not require the Seller to deliver to the Indenture Trustee an Opinion of Counsel. In connection with any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notificationsubstitution, the Seller shall ~~provide~~ calculate the Substitution Adjustment, if any, and shall deposit such amount to the ~~Trustee for deposit~~ Collection Account by 12:00 p.m. New York City time on the third Business Day prior to the Payment Date in the ~~Distribution Account~~ month succeeding the calendar month in which the related cure period expired. (b) The Seller shall notify the Servicer, the Insurer and the Indenture Trustee in writing not less than five Business Days before the related Determination Date which is on or before the date on which the Seller would otherwise be required to repurchase such Mortgage Loan pursuant to Section 2.02 or 2.04 of its intention to effect a substitution under this Section 2.05. On such Determination Date (the "Substitution Date"), the Seller shall deliver to the Insurer, the Servicer, the Depositor and the Indenture Trustee (1) a list of the Eligible Substitute Mortgage Loans to be substituted for the Defective Mortgage Loans, (2) a list of the Defective Mortgage Loans to be substituted for by such Eligible Substitute Mortgage Loans, (3) an Opinion of Counsel that the substitution of the Eligible Substitute Mortgage Loans will not adversely affect the tax status of the REMICs created by the Trust Agreement, (4) an Officer's Certificate (A) stating that no Event of Servicing Termination shall have occurred and be continuing, (B) stating that all conditions precedent to such substitution specified in subsection (a) have been satisfied and attaching as an exhibit a supplemental Mortgage Loan schedule (the "Supplemental Mortgage Loan Schedule") setting forth the same type of information as appears on the Mortgage Loan Schedule and representing as to the accuracy thereof and (C) confirming that the representations and warranties contained in Section 2.04 are true and correct in all material respects with respect to the Eligible Substitute Mortgage Loans on and as of such Determination Date, provided that remedies for the inaccuracy of such representations are limited as set forth in Sections 2.02, 2.04 and this Section 2.05 and (5) a certificate stating that cash in the amount of the related Substitution Adjustment, if any, has been deposited to the Collection Account; provided that the Servicer shall remit to the Indenture Trustee, who shall then remit to the Insurer, the portion of the amount, if any, ~~by which the Outstanding Principal Balance as~~ of the ~~next preceding Due Date~~ Substitution Adjustment referred to in clause (d) of the definition thereof to the extent such amount is incurred by the Insurer. Upon receipt of the foregoing, the Indenture Trustee shall release such Defective Mortgage Loan ~~for which substitution is being made, after giving effect~~ to the ~~Scheduled Principal due on~~ Trust and the Trust shall release such ~~date, exceeds the Outstanding Principal Balance as of such date of the Substitute~~ Defective Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification Loans to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or ~~warranty~~ warranty. (c) Concurrently with the satisfaction of the conditions set forth in ~~form as provided~~ Sections 2.05(a) above and the transfer of such Eligible Substitute Mortgage Loans to ~~it as are necessary~~ the Indenture Trustee pursuant to ~~vest in~~ Section 2.05(a), Exhibit A to this Agreement shall be deemed to be amended to exclude all Mortgage Loans being replaced by such Eligible Substitute Mortgage Loans and to include the ~~Seller title to and rights under any~~ information set forth on the Supplemental Mortgage Loan ~~released pursuant~~ Schedule with respect to such Eligible Substitute Mortgage Loans, and all references in this Agreement to Mortgage Loans shall include such Eligible Substitute Mortgage Loans and be deemed to be made on or after the ~~Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement~~related substitution date, as ~~applicable. The Seller shall deliver~~ the case may be, as to ~~the Custodian the documents related~~ such Eligible Substitute Mortgage Loans. (d) As to ~~the~~ any Eligible Substitute Mortgage Loan or Loans, the Seller shall cause to be delivered to the Indenture Trustee with respect to such Eligible Substitute Mortgage Loan or Loans such documents and agreements as are required to be held by the Indenture Trustee in accordance with Section 2.01. For any Collection Period during which the ~~provisions~~ Seller purchases one or more Defective Mortgage Loans, the Servicer shall determine the amount that shall be deposited by the Seller in the Collection Account at the time of substitution. Any amounts received in respect of the Eligible Substitute Mortgage Loan ~~Purchase Agreement or Subsections 2.01(b)~~ during the Collection Period in which the circumstances giving rise to such substitution occur shall not be a part of the Trust and ~~2.02(b)~~ shall not be deposited by the Servicer in the Collection Account. All amounts received by the Servicer during the Collection Period in which the circumstances giving rise to such substitution occur in respect of any Defective Mortgage Loan so removed by the Indenture Trustee shall be deposited by the Servicer in the Collection Account. Upon such substitution, the Eligible Substitute Mortgage Loan shall be subject to the terms of this ~~Agreement~~Agreement in all respects, and the Seller shall be deemed to have made with respect to such Eligible Substitute Mortgage Loan, as ~~applicable, with~~ of the date of ~~acceptance of~~ substitution, the ~~Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The~~ covenants, representations and warranties set forth in ~~the Mortgage Loan Purchase Agreement shall be deemed to have been made~~ Section 2.04. The procedures applied by the Seller ~~with respect to~~ in selecting each Eligible Substitute Mortgage Loan as shall not be materially adverse to the interests of the ~~date of acceptance of such Mortgage Loan by~~ Indenture Trustee, the ~~Trustee. The Master Servicer shall amend~~ Noteholders, the ~~Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to~~ Certificateholders or the ~~Trustee and the Rating Agencies~~Insurer.

Appears in 1 contract

Samples: Sale and Servicing Agreement (IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series 2006-H1)

Substitution of Mortgage Loans. ~~Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing~~ (a) On a ~~Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement~~ Determination Date which is on or ~~Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than~~ before the date by on which ~~such purchase by~~ the Seller would otherwise be ~~required~~required to repurchase a Mortgage Loan under Section 2.02 or 2.04, ~~tender~~ the Seller may deliver to the ~~Trustee a~~ Trust one or more Eligible Substitute Mortgage ~~Loan accompanied by a certificate of an authorized officer~~ Loans in substitution for any one or more of the Defective Mortgage Loans which the Seller ~~that such Substitute Mortgage Loan conforms~~ would otherwise be required to ~~the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution~~ repurchase pursuant to ~~the Mortgage Loan Purchase Agreement~~ Sections 2.02 or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, 2.04. In connection with any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notificationsubstitution, the Seller shall ~~provide~~ calculate the Substitution Adjustment, if any, and shall deposit such amount to the ~~Trustee for deposit~~ Collection Account by 12:00 p.m. New York City time on the third Business Day prior to the Payment Date in the ~~Distribution Account~~ month succeeding the calendar month in which the related cure period expired. (b) The Seller shall notify the Servicer, the Insurer and the Indenture Trustee in writing not less than five Business Days before the related Determination Date which is on or before the date on which the Seller would otherwise be required to repurchase such Mortgage Loan pursuant to Section 2.02 or 2.04 of its intention to effect a substitution under this Section 2.05. On such Determination Date (the “Substitution Date”), the Seller shall deliver to the Insurer, the Servicer, the Depositor and the Indenture Trustee (1) a list of the Eligible Substitute Mortgage Loans to be substituted for the Defective Mortgage Loans, (2) a list of the Defective Mortgage Loans to be substituted for by such Eligible Substitute Mortgage Loans, (3) an Officer’s Certificate (A) stating that no Event of Servicing Termination shall have occurred and be continuing, (B) stating that all conditions precedent to such substitution specified in subsection (a) have been satisfied and attaching as an exhibit a supplemental Mortgage Loan schedule (the “Supplemental Mortgage Loan Schedule”) setting forth the same type of information as appears on the Mortgage Loan Schedule and representing as to the accuracy thereof and (C) confirming that the representations and warranties contained in Section 2.04 are true and correct in all material respects with respect to the Eligible Substitute Mortgage Loans on and as of such Determination Date, provided that remedies for the inaccuracy of such representations are limited as set forth in Sections 2.02, 2.04 and this Section 2.05 and (4) a certificate stating that cash in the amount of the related Substitution Adjustment, if any, has been deposited to the Collection Account; provided that the Servicer shall remit to the Indenture Trustee, who shall then remit to the Insurer, the portion of the amount, if any, ~~by which the Outstanding Principal Balance as~~ of the ~~next preceding Due Date~~ Substitution Adjustment referred to in clause (d) of the definition thereof to the extent such amount is incurred by the Insurer. Upon receipt of the foregoing, the Indenture Trustee shall release such Defective Mortgage Loan ~~for which substitution is being made, after giving effect~~ to the ~~Scheduled Principal due on~~ Trust and the Trust shall release such ~~date, exceeds the Outstanding Principal Balance as of such date of the Substitute~~ Defective Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification Loans to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or ~~warranty~~ warranty. (c) Concurrently with the satisfaction of the conditions set forth in ~~form as provided~~ Sections 2.05(a) above and the transfer of such Eligible Substitute Mortgage Loans to ~~it as are necessary~~ the Indenture Trustee pursuant to ~~vest in~~ Section 2.05(a), Exhibit A to this Agreement shall be deemed to be amended to exclude all Mortgage Loans being replaced by such Eligible Substitute Mortgage Loans and to include the ~~Seller title to and rights under any~~ information set forth on the Supplemental Mortgage Loan ~~released pursuant~~ Schedule with respect to such Eligible Substitute Mortgage Loans, and all references in this Agreement to Mortgage Loans shall include such Eligible Substitute Mortgage Loans and be deemed to be made on or after the ~~Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement~~related substitution date, as ~~applicable. The Seller shall deliver~~ the case may be, as to ~~the Custodian the documents related~~ such Eligible Substitute Mortgage Loans. (d) As to ~~the~~ any Eligible Substitute Mortgage Loan or Loans, the Seller shall cause to be delivered to the Indenture Trustee with respect to such Eligible Substitute Mortgage Loan or Loans such documents and agreements as are required to be held by the Indenture Trustee in accordance with Section 2.01. For any Due Period during which the ~~provisions~~ Seller purchases one or more Defective Mortgage Loans, the Servicer shall determine the amount that shall be deposited by the Seller in the Collection Account at the time of substitution. Any amounts received in respect of the Eligible Substitute Mortgage Loan ~~Purchase Agreement or Subsections 2.01(b)~~ during the Due Period in which the circumstances giving rise to such substitution occur shall not be a part of the Trust and ~~2.02(b)~~ shall not be deposited by the Servicer in the Collection Account. All amounts received by the Servicer during the Due Period in which the circumstances giving rise to such substitution occur in respect of any Defective Mortgage Loan so removed by the Indenture Trustee shall be deposited by the Servicer in the Collection Account. Upon such substitution, the Eligible Substitute Mortgage Loan shall be subject to the terms of this ~~Agreement~~Agreement in all respects, and the Seller shall be deemed to have made with respect to such Eligible Substitute Mortgage Loan, as ~~applicable, with~~ of the date of ~~acceptance of~~ substitution, the ~~Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The~~ covenants, representations and warranties set forth in ~~the Mortgage Loan Purchase Agreement shall be deemed to have been made~~ Section 2.04. The procedures applied by the Seller ~~with respect to~~ in selecting each Eligible Substitute Mortgage Loan as shall not be materially adverse to the interests of the ~~date of acceptance of such Mortgage Loan by~~ Indenture Trustee, the ~~Trustee. The Master Servicer shall amend~~ Class A Noteholders, the ~~Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to~~ Certificateholders or the ~~Trustee and the Rating Agencies~~Insurer.

Appears in 1 contract

Samples: Sale and Servicing Agreement (Indymac Abs Inc)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement, a Subsequent Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee (on behalf of the Trust) a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "“Substitute Mortgage Loan" ” in the Mortgage Loan Purchase Agreement, any Subsequent Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement, any Subsequent Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "“qualified mortgage" ” as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of ~~Subsection~~ Section 2.02(a). Within two Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Securities Administrator for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or the Custodian as agent of the Trustee, as applicable, of a Request for Release for such Mortgage Loan), the Trustee or the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement, any Subsequent Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement, any Subsequent Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement, any Subsequent Mortgage Loan Purchase Agreement or ~~Subsections~~ Sections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those ~~Subsections~~Sections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement and any Subsequent Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the ~~Trustee~~Trustee (on behalf of the Trust). The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Trustee shall deliver such amended Mortgage Loan Schedule to the Rating Agencies.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (GreenPoint MTA Trust, Mortgage Pass-Through Certificates, Series 2005-Ar1)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement (or the related Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans) or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement, the related Subsequent Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement (or the related Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans) or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach of a Mortgage Loan representation or warranty would cause ~~the~~ such Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, then any such ~~cure or~~ substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the ~~Seller,~~ Seller in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Paying Agent for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request for Release for such Mortgage Loan), the Trustee (or the Custodian, as ~~agent for the Trustee,~~ its agent) shall release to the Seller the ~~related~~ Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement (or the related Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans) or Section 2.04 of this Agreement, as applicable, and the Trustee shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement (or the related Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans) or Section 2.04 of this Agreement, as applicable. The Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement (or the related Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans) or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans) for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement (or the related Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans) shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The ~~Master Servicer~~ Trustee shall amend the related Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Master Servicer and the Rating Agencies.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Structured Asset Mortgage Investments II Trust 2004-Ar7)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the related Servicing Agreement, the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Mortgage Loan Seller or EMC, as applicable, may, no later than the date by which such purchase by the Mortgage Loan Seller or EMC, as applicable, would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Mortgage Loan Seller or EMC, as applicable, that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the related Servicing Agreement or this Agreement, as applicable; ~~provided~~PROVIDED, ~~however~~HOWEVER, that substitution pursuant to the related Servicing Agreement, the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The ~~Custodian, as agent for the Trustee,~~ Trustee shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and ~~the Trustee or the Custodian, as its agent,~~ shall notify the ~~Seller~~Mortgage Loan Seller or EMC, as applicable, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ third sentence of Subsection 2.02(a). Within two Business Days after such notification, the Mortgage Loan Seller or EMC, as applicable, shall provide to the Trustee for deposit in the ~~Distribution~~ Certificate Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Mortgage Loan Seller or EMC, as applicable, of the Repurchase Price for the purchase of a Mortgage Loan by the ~~Seller~~Mortgage Loan Seller or EMC, as applicable. After such notification to the Mortgage Loan Seller or EMC and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the ~~Seller~~Mortgage Loan Seller or EMC, as applicable, or the Master Servicer. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Mortgage Loan Seller or EMC, as applicable, and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage ~~Loan (and delivery to the Custodian of a Request for Release for such Mortgage~~ Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the Mortgage Loan Seller or EMC, as applicable, the related Mortgage File related to any Mortgage Loan released pursuant to the related Servicing Agreement, the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the Mortgage Loan Seller or EMC, as applicable, title to and rights under any Mortgage Loan released pursuant to the related Servicing Agreement, the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Mortgage Loan Seller or EMC shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the ~~Mortgage Loan Purchase~~ related Servicing Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the applicable Servicing Agreements and the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Mortgage Loan Seller or EMC with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The ~~Master Servicer~~ Trustee shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Master Servicer and the Rating Agencies.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc)

Substitution of Mortgage Loans. Notwithstanding anything to ------------------------------ the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to ~~the Mortgage Loan Purchase Agreement or~~ Sections 2.02 or ~~2.03 of this Agreement~~2.03, ~~the Seller~~ ICI Funding may, no later than the date by which such purchase by ~~the Seller~~ ICI Funding would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by ~~a certificate~~ an Officer's Certificate of ~~an authorized officer of the Seller~~ ICI Funding that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan~~" in this Agreement~~"; provided, however, that substitution -------- ------- pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section 2.04 ~~of this Agreement, as applicable,~~ in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The ~~Custodian, as agent for the Trustee,~~ Trustee shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and ~~the Trustee or the Custodian, as its agent,~~ shall notify the ~~Seller,~~ Master Servicer in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ third sentence of Subsection 2.02(a). Within two Business Days after such notification, ~~the Seller~~ ICI Funding shall ~~provide to the Trustee for~~ deposit in the ~~Distribution~~ appropriate subaccount of the Certificate Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by ~~the Seller~~ ICI Funding of the Repurchase Price for the purchase of a Mortgage Loan by ~~the Seller~~ICI Funding. After such notification to ~~the Seller~~ ICI Funding, and, if any such excess exists, upon receipt of such ~~deposit~~deposit and of written notification thereof signed by a Servicing Officer, the Trustee shall accept such Substitute Mortgage ~~Loan~~ Loan, which shall thereafter be deemed to be a Mortgage Loan. If the Outstanding Principal Balance as of the next preceding due date of the Substitute Mortgage Loan, after giving affect to Scheduled Principal due on such Due Date, exceeds the Outstanding Principal Balance as of the next preceding due Date of the Mortgage Loan ~~hereunder~~for which substitution is being made, such excess shall be paid to ICI Funding. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of ~~the Seller~~ICI Funding. The Scheduled ~~Principal~~ Payment on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of ~~the Seller~~ ICI Funding and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage ~~Loan (and delivery to the Custodian of a Request for Release for such Mortgage~~ Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to ~~the Seller~~ ICI Funding the related Mortgage File related to any Mortgage Loan released pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section 2.04 ~~of this Agreement, as applicable,~~ and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in ~~the Seller~~ ICI Funding title to and rights under any Mortgage Loan released pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section ~~2.04 of this Agreement, as applicable~~2.04. ~~The Seller~~ ICI Funding shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of ~~the Mortgage Loan Purchase Agreement or~~ Subsections 2.01(b) and 2.02(b~~) of this Agreement, as applicable~~), with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in ~~the Mortgage Loan Purchase Agreement~~ Exhibit C shall be deemed to have been made by ~~the Seller~~ ICI Funding with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The ~~Master Servicer~~ Trustee shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Master Servicer and the Rating Agencies.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Icifc Secured Assets Corp)

Substitution of Mortgage Loans. ~~Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing~~ (a) On a ~~Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement~~ Determination Date which is on or ~~Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than~~ before the date by on which ~~such purchase by~~ the Seller would otherwise be ~~required~~required to repurchase a Mortgage Loan under Section 2.02 or 2.04, ~~tender~~ the Seller may deliver to the ~~Trustee a~~ Trust one or more Eligible Substitute Mortgage ~~Loan accompanied by a certificate of an authorized officer~~ Loans in substitution for any one or more of the Defective Mortgage Loans which the Seller would otherwise be required to repurchase pursuant to Sections 2.02 or 2.04, provided that ~~such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that~~ no substitution pursuant to Section 2.02 or 2.04 shall be made more than two years after the ~~Mortgage Loan Purchase Agreement~~ Closing Date unless the Seller delivers to the Indenture Trustee and the Insurer (so long as the Class A Notes are Outstanding or ~~Section 2.04~~ any Reimbursement Amounts remain due and owing to the Insurer) an Opinion of ~~this Agreement~~Counsel, ~~as applicable, in lieu~~ which Opinion of ~~purchase~~ Counsel shall not be ~~permitted~~ at the expense of either the Indenture Trustee or the Trust Fund, addressed to the Indenture Trustee and the Insurer (so long as the Class A Notes are Outstanding or any Reimbursement Amounts remain due and owing to the Insurer), to the effect that such substitution will not (i) result in the imposition of the tax on "prohibited transactions" on the Trust Fund or contributions after the ~~termination of the two-year period beginning on the~~ Startup ~~Day; provided~~Date, ~~further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage"~~ as defined in ~~Section 860G(a)(3~~Sections 860F(a)(2) and 860G(D) of the Code, respectively, or (ii) cause any REMIC created under the Trust Agreement to fail to qualify as a REMIC at any time that any Notes are outstanding. A substitution pursuant to Section 2.02 or 2.04 that is made within two years after the Closing Date to replace a "defective obligation" within the meaning of Section 860G(a)(4) of the Code shall not require the Seller to deliver to the Indenture Trustee an Opinion of Counsel. In connection with any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notificationsubstitution, the Seller shall ~~provide~~ calculate the Substitution Adjustment, if any, and shall deposit such amount to the ~~Trustee for deposit~~ Collection Account by 12:00 p.m. New York City time on the third Business Day prior to the Payment Date in the ~~Distribution Account~~ month succeeding the calendar month in which the related cure period expired. (b) The Seller shall notify the Servicer, the Insurer and the Indenture Trustee in writing not less than five Business Days before the related Determination Date which is on or before the date on which the Seller would otherwise be required to repurchase such Mortgage Loan pursuant to Section 2.02 or 2.04 of its intention to effect a substitution under this Section 2.05. On such Determination Date (the "Substitution Date"), the Seller shall deliver to the Insurer, the Servicer, the Depositor and the Indenture Trustee (1) a list of the Eligible Substitute Mortgage Loans to be substituted for the Defective Mortgage Loans, (2) a list of the Defective Mortgage Loans to be substituted for by such Eligible Substitute Mortgage Loans, (3) if such substitution is more than two years after the Closing Date, an Opinion of Counsel that the substitution of the Eligible Substitute Mortgage Loans will not (A) result in the imposition of the tax on "prohibited transactions" on the Trust or (B) cause any REMIC created under the Trust Agreement to fail to qualify as a REMIC at any time the Notes are outstanding, (4) an Officer's Certificate (A) stating that no Event of Servicer Termination shall have occurred and be continuing, (B) stating that all conditions precedent to such substitution specified in subsection (a) have been satisfied and attaching as an exhibit a supplemental Mortgage Loan schedule (the "Supplemental Mortgage Loan Schedule") setting forth the same type of information as appears on the Mortgage Loan Schedule and representing as to the accuracy thereof and (C) confirming that the representations and warranties contained in Section 2.04 are true and correct in all material respects with respect to the Eligible Substitute Mortgage Loans on and as of such Determination Date, provided that remedies for the inaccuracy of such representations are limited as set forth in Sections 2.02, 2.04 and this Section 2.05 and (5) a certificate stating that cash in the amount of the related Substitution Adjustment, if any, has been deposited to the Collection Account; provided that the Servicer shall remit to the Indenture Trustee, who shall then remit to the Insurer, the portion of the amount, if any, ~~by which the Outstanding Principal Balance as~~ of the ~~next preceding Due Date~~ Substitution Adjustment referred to in clause (d) of the definition thereof to the extent such amount is incurred by the Insurer. Upon receipt of the foregoing, the Indenture Trustee shall release such Defective Mortgage Loan ~~for which substitution is being made, after giving effect~~ to the ~~Scheduled Principal due on~~ Trust and the Trust shall release such ~~date, exceeds the Outstanding Principal Balance as of such date of the Substitute~~ Defective Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification Loans to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or ~~warranty~~ warranty. (c) Concurrently with the satisfaction of the conditions set forth in ~~form as provided~~ Sections 2.05(a) above and the transfer of such Eligible Substitute Mortgage Loans to ~~it as are necessary~~ the Indenture Trustee pursuant to ~~vest in~~ Section 2.05(a), Exhibit A to this Agreement shall be deemed to be amended to exclude all Mortgage Loans being replaced by such Eligible Substitute Mortgage Loans and to include the ~~Seller title to and rights under any~~ information set forth on the Supplemental Mortgage Loan ~~released pursuant~~ Schedule with respect to such Eligible Substitute Mortgage Loans, and all references in this Agreement to Mortgage Loans shall include such Eligible Substitute Mortgage Loans and be deemed to be made on or after the ~~Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement~~related substitution date, as ~~applicable. The Seller shall deliver~~ the case may be, as to ~~the Custodian the documents related~~ such Eligible Substitute Mortgage Loans. (d) As to ~~the~~ any Eligible Substitute Mortgage Loan or Loans, the Seller shall cause to be delivered to the Indenture Trustee with respect to such Eligible Substitute Mortgage Loan or Loans such documents and agreements as are required to be held by the Indenture Trustee in accordance with Section 2.01. For any Collection Period during which the ~~provisions~~ Seller purchases one or more Defective Mortgage Loans, the Servicer shall determine the amount that shall be deposited by the Seller in the Collection Account at the time of substitution. Any amounts received in respect of the Eligible Substitute Mortgage Loan ~~Purchase Agreement or Subsections 2.01(b)~~ during the Collection Period in which the circumstances giving rise to such substitution occur shall not be a part of the Trust and ~~2.02(b)~~ shall not be deposited by the Servicer in the Collection Account. All amounts received by the Servicer during the Collection Period in which the circumstances giving rise to such substitution occur in respect of any Defective Mortgage Loan so removed by the Indenture Trustee shall be deposited by the Servicer in the Collection Account. Upon such substitution, the Eligible Substitute Mortgage Loan shall be subject to the terms of this ~~Agreement~~Agreement in all respects, and the Seller shall be deemed to have made with respect to such Eligible Substitute Mortgage Loan, as ~~applicable, with~~ of the date of ~~acceptance of~~ substitution, the ~~Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The~~ covenants, representations and warranties set forth in ~~the Mortgage Loan Purchase Agreement shall be deemed to have been made~~ Section 2.04. The procedures applied by the Seller ~~with respect to~~ in selecting each Eligible Substitute Mortgage Loan as shall not be materially adverse to the interests of the ~~date of acceptance of such Mortgage Loan by~~ Indenture Trustee, the ~~Trustee. The Master Servicer shall amend~~ Noteholders, the ~~Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to~~ Certificateholders or the ~~Trustee and the Rating Agencies~~Insurer.

Appears in 1 contract

Samples: Sale and Servicing Agreement (Indymac MBS Inc)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase ~~Agreement~~ Agreement, the related Sale Agreement, as applicable, or ~~Sections~~ Section 2.02 ~~or 2.03~~ of this Agreement, the Mortgage Loan Seller or the related Underlying Seller, as applicable, may, no later than the date by which such purchase by the Mortgage Loan Seller or the related Underlying Seller, as applicable, would otherwise be required, tender to the Indenture Trustee a Substitute Mortgage ~~Loan~~ Loan, accompanied by a certificate of an authorized officer of the Mortgage Loan Seller or the related Underlying Seller, as applicable, that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "“Substitute Mortgage Loan" ” in this Agreement~~; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase~~ . The Indenture Trustee shall ~~not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would~~ cause the ~~Mortgage Loan~~ related Custodian to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Indenture Trustee shall cause the related Custodian to notify the Mortgage Loan Seller or the ~~Custodian~~related Underlying Seller, as ~~its agent, shall notify the Seller~~applicable, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of ~~the fifth sentence of Subsection 2.02(a)~~Section 2.02. Within two Business Days after such notification, the Mortgage Loan Seller or the related Underlying Seller, as applicable, shall provide to the ~~Trustee~~ Master Servicer for deposit in the ~~Distribution~~ Payment Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Mortgage Loan Seller or the related Underlying Seller, as applicable, of the Repurchase Price for the purchase of a Mortgage Loan by the Mortgage Loan Seller or the related Underlying Seller, as applicable. After such notification to the Mortgage Loan Seller or the related Underlying Seller, as applicable, and, if any such excess exists, upon receipt of certification from the Master Servicer that such ~~deposit~~excess has been deposited in the Payment Account, the Indenture Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust ~~Fund~~ Estate and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Mortgage Loan Seller or the related Underlying Seller, as applicable. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Mortgage Loan Seller or the related Underlying Seller, as applicable, and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust ~~Fund~~Estate. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Indenture Trustee and the related Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for~~ Indenture Trustee shall cause the ~~Trustee, shall~~ related Custodian to release to the Mortgage Loan Seller or the related Underlying Seller, as applicable, the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or the related Sale Agreement, as applicable, or this Section ~~2.04 of this Agreement~~2.03, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Mortgage Loan Seller or the related Underlying Seller, as applicable, title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or the related Sale Agreement, as applicable, or or this Section ~~2.04 of this Agreement~~2.03, as applicable. The Mortgage Loan Seller or the related Underlying Seller, as applicable, shall deliver to the related Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or the related Sale Agreement, as applicable, and Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement or the related Sale Agreement, as applicable, shall be deemed to have been made by the Mortgage Loan Seller or the related Underlying Seller, as applicable, with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Indenture Trustee. The ~~Master Servicer~~ Mortgage Loan Seller shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Issuing Entity, the Indenture Trustee, the Master Servicer, the Securities Administrator, the related Custodian and the Rating Agencies. In connection with any substitution of a Mortgage Loan or the cure of a breach of a representation or warranty set forth in the Mortgage Loan Purchase Agreement or the related Sale Agreement, as applicable, and pursuant to this Section 2.03, the Mortgage Loan Seller shall promptly furnish or request that the Underlying Seller shall furnish to the Securities Administrator and the Indenture Trustee an officer’s certificate, signed by a duly authorized officer of the Mortgage Loan Seller or the related Underlying Seller, as applicable, to the effect that such substitution or cure has been made in accordance with the terms and conditions of this Agreement and that all conditions precedent to such substitution or cure have been satisfied, including the delivery to the Securities Administrator of the amount set forth in this Section 2.03 with respect to any Substitute Mortgage Loan for deposit into the Payment Account, together with copies of any Opinion of Counsel required to be delivered pursuant to this Agreement and the related Request for Release, in which the Securities Administrator and the Indenture Trustee may rely. Solely for purposes of the Securities Administrator providing an Assessment of Compliance, upon receipt of such documentation, the Securities Administrator shall approve such substitution or cure, as applicable, and which approval shall consist solely of the Securities Administrator’s receipt of such documentation and deposits.

Appears in 1 contract

Samples: Sale and Servicing Agreement (Bear Stearns ARM Trust 2007-2)

Substitution of Mortgage Loans. ~~Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing~~ (a) On a ~~Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement~~ Determination Date which is on or ~~Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than~~ before the date by on which ~~such purchase by~~ the Seller would otherwise be ~~required~~required to repurchase a Mortgage Loan under Sections 2.02, ~~tender~~ 2.04 or 2.10, the Seller may deliver to the ~~Trustee a~~ Trust one or more Eligible Substitute Mortgage ~~Loan accompanied by a certificate of an authorized officer~~ Loans in substitution for any one or more of the Defective Mortgage Loans or Locked Loans which the Seller ~~that~~ would otherwise be required to repurchase pursuant to Sections 2.02, 2.04 or 2.10. In connection with any such substitution, the Seller shall calculate the Substitution Adjustment, if any, and shall deposit such amount to the Collection Account by 12:00 p.m. New York City time on the third Business Day prior to the Payment Date in the month succeeding the calendar month in which the related cure period expired. (b) The Seller shall notify the Servicer, the Insurer and the Indenture Trustee in writing not less than five Business Days before the related Determination Date which is on or before the date on which the Seller would otherwise be required to repurchase such Mortgage Loan pursuant to Sections 2.02, 2.04 or 2.10 of its intention to effect a substitution under this Section 2.06. On such Determination Date (the “Substitution Date”), the Seller shall deliver to the Insurer and the Indenture Trustee (1) the Eligible Substitute Mortgage Loans to be substituted for the Defective Mortgage Loans, (2) a list of the Defective Mortgage Loans to be substituted for by such Eligible Substitute Mortgage Loans, (3) an Officer’s Certificate (A) stating that no Event of Servicing Termination shall have occurred and be continuing, (B) stating that all conditions precedent to such substitution specified in subsection (a) have been satisfied and attaching as an exhibit a supplemental Mortgage Loan ~~conforms~~ schedule (the “Supplemental Mortgage Loan Schedule”) setting forth the same type of information as appears on the Mortgage Loan Schedule and representing as to the ~~requirements~~ accuracy thereof and (C) confirming that the representations and warranties contained in Section 2.04 are true and correct in all material respects with respect to the Eligible Substitute Mortgage Loans on and as of such Determination Date, provided that remedies for the inaccuracy of such representations are limited as set forth in Sections 2.02, 2.04, 2.10 and this Section 2.06 and (4) a certificate stating that cash in the ~~definition~~ amount of ~~"Substitute Mortgage Loan" in this Agreement; provided~~the related Substitution Adjustment, ~~however~~if any, ~~that substitution pursuant~~ has been deposited to the ~~Mortgage Loan Purchase Agreement~~ Collection Account; provided that the Indenture Trustee shall remit to the Depositor or ~~Section 2.04 of this Agreement~~the Insurer, as applicable, ~~in lieu~~ the portion of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, ~~by which the Outstanding Principal Balance as~~ of the ~~next preceding Due Date~~ Substitution Adjustment referred to in clause (d) of the ~~Mortgage Loan for which substitution is being made, after giving effect~~ definition thereof to the ~~Scheduled Principal due~~ extent such amount is incurred by or imposed on ~~such date, exceeds~~ the ~~Outstanding Principal Balance as of such date~~ Depositor or the Insurer. Upon receipt of the ~~Substitute~~ foregoing, the Trust shall release such Defective Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification Loans to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Custodian of a Request for Release for such Mortgage Loan), the Custodian, as agent for the Trustee, shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or ~~warranty~~ warranty. (c) Concurrently with the satisfaction of the conditions set forth in ~~form as provided~~ Sections 2.06(a) above and the transfer of such Eligible Substitute Mortgage Loans to ~~it as are necessary~~ the Trust pursuant to ~~vest in~~ Section 2.06(a), Exhibit A to this Agreement shall be deemed to be amended to exclude all Mortgage Loans being replaced by such Eligible Substitute Mortgage Loans and to include the ~~Seller title to and rights under any~~ information set forth on the Supplemental Mortgage Loan ~~released pursuant~~ Schedule with respect to such Eligible Substitute Mortgage Loans, and all references in this Agreement to Mortgage Loans shall include such Eligible Substitute Mortgage Loans and be deemed to be made on or after the ~~Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement~~related substitution date, as ~~applicable. The Seller shall deliver~~ the case may be, as to ~~the Custodian the documents related~~ such Eligible Substitute Mortgage Loans. (d) As to ~~the~~ any Eligible Substitute Mortgage Loan or Loans, the Seller shall cause to be delivered to the Indenture Trustee with respect to such Eligible Substitute Mortgage Loan or Loans such documents and agreements as are required to be held by the Indenture Trustee in accordance with Section 2.01. For any Due Period during which the ~~provisions~~ Seller purchases one or more Defective Mortgage Loans, the Servicer shall determine the amount that shall be deposited by the Seller in the Collection Account at the time of substitution. Any amounts received in respect of the Eligible Substitute Mortgage Loan ~~Purchase Agreement~~ or ~~Subsections 2.01(b)~~ Loans during the Due Period in which the circumstances giving rise to such substitution occur shall not be a part of the Trust and ~~2.02(b)~~ shall not be deposited by the Servicer in the Collection Account. All amounts received by the Servicer during the Due Period in which the circumstances giving rise to such substitution occur in respect of any Defective Mortgage Loan so removed by the Indenture Trustee shall be deposited by the Servicer in the Collection Account. Upon such substitution, the Eligible Substitute Mortgage Loan or Loans shall be subject to the terms of this ~~Agreement~~Agreement in all respects, and the Seller shall be deemed to have made with respect to such Eligible Substitute Mortgage Loan or Loans, as ~~applicable, with~~ of the date of ~~acceptance of~~ substitution, the ~~Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The~~ covenants, representations and warranties set forth in ~~the Mortgage Loan Purchase Agreement shall be deemed to have been made~~ Section 2.04. The procedures applied by the Seller ~~with respect to~~ in selecting each Eligible Substitute Mortgage Loan as shall not be materially adverse to the interests of the ~~date of acceptance of such Mortgage Loan by~~ Indenture Trustee, the ~~Trustee. The Master Servicer shall amend~~ Class A Noteholders or the ~~Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies~~Insurer.

Appears in 1 contract

Samples: Sale and Servicing Agreement (First Horizon Asset Securities Inc)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Securities Administrator for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the ~~Repurchase~~ Purchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the ~~Trust Fund~~ Issuing Entity and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the ~~Trust Fund~~Issuing Entity. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Trustee and the Rating Agencies. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Mortgage Loan shall be made unless the Securities Administrator and the Trustee shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related "regular interests" as "regular interests" in any such REMIC, or (B) cause any such REMIC to engage in a "prohibited transaction" or prohibited contribution pursuant to the REMIC provisions.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2006-A1)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "“Substitute Mortgage Loan" ” in the Mortgage Loan Purchase Agreement or this Agreement, as applicable; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "“qualified mortgage" ” as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Trustee or the Custodian, as ~~agent for the Trustee~~its agent, shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Trustee or the Custodian, as its agent, shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ fourth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the Trustee for deposit in the Distribution Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the ~~Repurchase~~ Purchase Price for the purchase of a Mortgage Loan by the ~~Seller~~Seller . After such notification to the Seller and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage Loan (and delivery to the Trustee or Custodian of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver ~~to the Custodian~~ the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Trustee, the NIMs Insurer, if any, and the Rating Agencies. Notwithstanding any other provision of this Agreement, the right to substitute Mortgage Loans pursuant to this Article II shall be subject to the additional limitations that no substitution of a Mortgage Loan shall be made unless the Master Servicer, the Trustee and the NIMs Insurer shall have received an Opinion of Counsel (at the expense of the party seeking to make the substitution) that, under current law, such substitution will not (A) affect adversely the status of any REMIC established hereunder as a REMIC, or of the related “regular interests” as “regular interests” in any such REMIC, or (B) cause any such REMIC to engage in a “prohibited transaction” or prohibited contribution pursuant to the REMIC provisions.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2005-A6)

Substitution of Mortgage Loans. Notwithstanding anything to the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Indenture Trustee a Substitute Mortgage Loan accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The ~~Custodian, as agent for the Trustee,~~ Indenture Trustee shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and the Indenture Trustee ~~or the Custodian, as its agent,~~ shall notify the Seller, in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the fifth sentence of Subsection 2.02(a). Within two Business Days after such notification, the Seller shall provide to the ~~Trustee~~ Master Servicer for deposit in the ~~Distribution~~ Master Servicer Collection Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to the Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by the Seller of the Repurchase Price for the purchase of a Mortgage Loan by the Seller. After such notification to the Seller and, if any such excess exists, upon receipt of certification from the Master Servicer that such ~~deposit~~excess has been deposited in the Master Servicer Collection Account, the Indenture Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust ~~Fund~~ Estate and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the Seller. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of the Seller and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust ~~Fund~~Estate. Upon acceptance of the Substitute Mortgage Loan (and delivery to the ~~Custodian~~ Indenture Trustee of a Request for Release for such Mortgage Loan), the ~~Custodian, as agent for the Trustee,~~ Indenture Trustee shall release to the Seller the related Mortgage File related to any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, and shall execute and deliver all instruments of transfer or assignment, without recourse, representation or warranty in form as provided to it as are necessary to vest in the Seller title to and rights under any Mortgage Loan released pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the ~~Custodian~~ Indenture Trustee the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or and Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections. The representations and warranties set forth in the Mortgage Loan Purchase Agreement shall be deemed to have been made by the Seller with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Indenture Trustee. The Master Servicer shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the Issuer, the Indenture Trustee and the Rating Agencies.

Appears in 1 contract

Samples: Sale and Servicing Agreement (Structured Asset Mort Inv Inc Mort Back NTS Ser 2003-1)

Substitution of Mortgage Loans. ~~Notwithstanding anything to~~ In the contrary in this Agreement, in lieu of purchasing a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement or Sections 2.02 or 2.03 of this Agreement, the Seller may, no later than the date by which such purchase by the Seller would otherwise be required, tender to the Trustee event EMC provides a Substitute Mortgage Loan ~~accompanied by a certificate of an authorized officer of the Seller that such Substitute Mortgage Loan conforms~~ to the requirements set forth in the definition of "Substitute Mortgage Loan" in this Agreement; provided, however, that substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.04 of this Agreement, as applicable, in lieu of purchase shall not be permitted after the termination of the two-year period beginning on the Startup Day; provided, further, that if the breach would cause the Mortgage Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure or substitution must occur within 90 days from the date the breach was discovered. The Custodian, as agent for the Trustee, the Trustee shall examine the Mortgage File for any Substitute Mortgage Loan in the manner set forth in Section 2.02(a) and ~~the Trustee or the Custodian, as its agent,~~ shall notify EMC and the ~~Seller,~~ Master Servicer in writing, within five Business Days after receipt, whether or not the documents relating to the Substitute Mortgage Loan satisfy the requirements of the ~~fifth~~ third sentence of Subsection 2.02(a). Within two Business Days after such notification, ~~the Seller~~ EMC shall provide to the Trustee for deposit in the ~~Distribution~~ Certificate Account the amount, if any, by which the Outstanding Principal Balance as of the next preceding Due Date of the Mortgage Loan for which substitution is being made, after giving effect to ~~the~~ Scheduled Principal due on such date, exceeds the Outstanding Principal Balance as of such date of the Substitute Mortgage Loan, after giving effect to Scheduled Principal due on such date, which amount shall be treated for the purposes of this Agreement as if it were the payment by ~~the Seller~~ EMC of the Repurchase Price for the purchase of a Mortgage Loan by ~~the Seller~~such entity. After such notification to ~~the Seller~~ EMC and, if any such excess exists, upon receipt of such deposit, the Trustee shall accept such Substitute Mortgage Loan which shall thereafter be deemed to be a Mortgage Loan hereunder. In the event of such a substitution, accrued interest on the Substitute Mortgage Loan for the month in which the substitution occurs and any Principal Prepayments made thereon during such month shall be the property of the Trust Fund and accrued interest for such month on the Mortgage Loan for which the substitution is made and any Principal Prepayments made thereon during such month shall be the property of the ~~Seller~~applicable entity. The Scheduled Principal on a Substitute Mortgage Loan due on the Due Date in the month of substitution shall be the property of ~~the Seller~~ EMC, and the Scheduled Principal on the Mortgage Loan for which the substitution is made due on such Due Date shall be the property of the Trust Fund. Upon acceptance of the Substitute Mortgage ~~Loan (and delivery to the Custodian of a Request for Release for such Mortgage~~ Loan), the ~~Custodian, as agent for the Trustee,~~ Trustee shall release to the ~~Seller~~ applicable entity the related Mortgage File related to any Mortgage Loan released pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section 2.04 ~~of this Agreement, as applicable,~~ and shall execute and deliver all instruments of transfer or assignment, without recourse, ~~representation or warranty~~ in form as provided to it as are necessary to vest in the ~~Seller~~ applicable entity title to and rights under any Mortgage Loan released pursuant to ~~the Mortgage Loan Purchase Agreement or~~ this Section 2.04 of this Agreement, as applicable. The Seller shall deliver to the Custodian the documents related to the Substitute Mortgage Loan in accordance with the provisions of the Mortgage Loan Purchase Agreement or Subsections 2.01(b) and 2.02(b) of this Agreement, as applicable, with the date of acceptance of the Substitute Mortgage Loan deemed to be the Closing Date for purposes of the time periods set forth in those Subsections2.04. The representations and warranties set forth in ~~the Mortgage Loan Purchase Agreement~~ Exhibit C shall be deemed to have been made by ~~the Seller~~ EMC with respect to each Substitute Mortgage Loan as of the date of acceptance of such Mortgage Loan by the Trustee. The ~~Master Servicer~~ Trustee shall amend the Mortgage Loan Schedule to reflect such substitution and shall provide a copy of such amended Mortgage Loan Schedule to the ~~Trustee~~ Master Servicer and the Rating Agencies.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc)

Common use of Substitution of Mortgage Loans Clause in Contracts