Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller or the Depositor; Payment of Prepayment Charges in the event of breach. (a) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, the Mortgage File or of the breach by any Originator or the Seller of any representation, warranty or covenant under each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made), the Trustee shall promptly notify the Seller and the related Servicer of such defect, missing document or breach and cause such Originator or Seller, as applicable, to deliver such missing document or cure such defect or breach within 90 days from the date the Originator or Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may be, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee shall enforce the obligations of such Originator or the Seller, as applicable, under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, to repurchase such Mortgage Loan from the Trust Fund at the Purchase Price within 90 days after the date on which such Originator or the Seller, as applicable, was notified (subject to Section 2.03(d)) of such missing document, defect or breach, if and to the extent that such Originator or the Seller, as applicable, is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so. The Purchase Price for the repurchased Mortgage Loan shall be deposited in the Distribution Account, and the Trustee, upon receipt of such deposit, shall release or cause the Custodian to release to such Originator or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such Originator or the Seller, as the case may be, any Mortgage Loan released pursuant hereto, and the Trustee shall have no further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, the related Originator, the Seller or the Depositor, as applicable, may cause such Mortgage Loan to be removed from the Trust Fund (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c). It is understood and agreed that the obligation of the related Originator, the Seller or the Depositor, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee on behalf of the Certificateholders. (i) As promptly as practicable (and no later than 90 days) after the earlier of discovery by the related Servicer or receipt of notice by the related Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects. (ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge. (c) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which is two years after the Closing Date for the Trust Fund. As to any Deleted Mortgage Loan for which an Originator, the Seller or the Depositor substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller or the Depositor, as the case may be, delivering to the Custodian on behalf of the Trustee, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Amount (as described below), if any, in connection with such substitution. The Trustee or the Custodian shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, review such documents as specified in Section 2.02 and deliver to the Trustee, the Depositor and the related Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee or the Custodian shall deliver to the Depositor and the related Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund and will be retained by the related Originator, the Seller or the Depositor, as the case may be. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the related Originator, the Seller or the Depositor, as the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement, including, in the case of a substitution effected by an Originator, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by the Seller, all applicable representations and warranties thereof included in the Letter Agreement, in each case as of the date of substitution. For any month in which an Originator, the Seller or the Depositor substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Servicer will determine the amount (the "Substitution Shortfall Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the Stated Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance at the applicable Net Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller or the Depositor, as the case may be, will deliver or cause to be delivered to the applicable Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall Amount, if any, and the Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification by the applicable Servicer of such deposit, shall release to the related Originator, the Depositor or the Seller, as the case may be, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor or the Seller, as the case may be, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor or the Seller, as the case may be, shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereunder, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any REMIC hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding. (d) Upon discovery by the Depositor, the Seller, a Servicer, or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the related Originator, the Seller or the Depositor, as the case may be shall repurchase or, subject to the limitations set forth in Section 2.03(c), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall cause such repurchase or substitution to be made by (i) the related Originator, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the related Originator under the applicable Mortgage Loan Purchase Agreement, (ii) the Seller, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee shall reconvey to the related Originator, the Seller or the Depositor, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Asset Backed Securities Corp)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller an Originator or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, the a Mortgage File or of the breach by any an Originator or the Seller of any representation, warranty or covenant under each the Master Agreements or the Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, (including any representation, warranty or covenant regarding the Prepayment Charge Schedule) in respect of any Mortgage Loan which that materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders (in Certificateholders, the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement Trust Administrator or the Letter AgreementTrustee (who shall have received notice from the Custodian), as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made), the Trustee shall promptly notify the Seller related Originator, the NIMS Insurer, the Seller, the Servicers and the related Master Servicer of such defect, missing document or breach and cause such request that the related Originator or the Seller, as applicable, to deliver such missing document or cure such defect or breach within 90 days from the date the such Originator or the Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by , and if the Originator under the applicable Mortgage Loan Purchase Agreement. If such related Originator or the Seller, as the case may beapplicable, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee shall enforce the obligations of such the related Originator or the Seller, as applicable, under the related Maser Agreement or the Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may beapplicable, to repurchase such Mortgage Loan from the Trust Fund REMIC I at the Purchase Price within 90 days after the date on which such the related Originator or the Seller, as applicable, was notified (subject to Section 2.03(d2.03(c)) of such missing document, defect or breach, if and to the extent that such the related Originator or the Seller, as applicable, is obligated to do so under the related Master Agreement or the Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so. The Purchase Price for the repurchased Mortgage Loan shall be deposited in remitted to the Master Servicer for deposit into the Distribution Account, Account and the TrusteeTrust Administrator (or the Custodian with respect to the Deutsche Bank Files), upon receipt of written notice from the Master Servicer of such deposit, shall release or cause to the Custodian to release to such related Originator or the Seller, as applicable, the related Mortgage File and the Trustee Trust Administrator (or the Custodian with respect to the Deutsche Bank Files) shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such the related Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such the related Originator or the Seller, as the case may beapplicable, any Mortgage Loan released pursuant hereto. In furtherance of the foregoing, if the related Originator or the Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS(R) System, the related Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the related Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the Trustee MERS(R) System in accordance with MERS' rules and regulations. The Trust Administrator (or the Custodian with respect to the Deutsche Bank Files) shall not have no any further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Master Agreement or the Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, the related Originator, the Seller Originator or the DepositorSeller, as applicable, may cause such Mortgage Loan to be removed from the Trust Fund REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c2.03(b); provided, however, the related Originator or the Seller, as applicable, may not substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory or abusive lending law. It is understood and agreed that the obligation of the related Originator, the Seller an Originator or the DepositorSeller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee on behalf of and the Certificateholders.
(i) As promptly as practicable (and no later than 90 days) after the earlier of discovery by the related Servicer or receipt of notice by the related Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(cb) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which is two years after the Closing Date Startup Day for the Trust Fund. REMIC I. As to any Deleted Mortgage Loan for which an Originator, the Seller Originator or the Depositor Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller related Originator or the DepositorSeller, as the case may beapplicable, delivering to the Trust Administrator (or the Custodian on behalf of with respect to the TrusteeDeutsche Bank Files), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment in blank or to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee or the Custodian shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, review such documents as specified in Section 2.02 and deliver to the Trustee, the Depositor and the related Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee or the Custodian shall deliver to the Depositor and the related Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund and will be retained by the related Originator, the Seller or the Depositor, as the case may be. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the related Originator, the Seller or the Depositor, as the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement, including, in the case of a substitution effected by an Originator, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by the Seller, all applicable representations and warranties thereof included in the Letter Agreement, in each case as of the date of substitution. For any month in which an Originator, the Seller or the Depositor substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Servicer will determine the amount (the "Substitution Shortfall Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the Stated Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance at the applicable Net Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller or the Depositor, as the case may be, will deliver or cause to be delivered to the applicable Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall Amount, if any, and the Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification by the applicable Servicer of such deposit, shall release to the related Originator, the Depositor or the Seller, as the case may be, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor or the Seller, as the case may be, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor or the Seller, as the case may be, shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereunder, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any REMIC hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding.
(d) Upon discovery by the Depositor, the Seller, a Servicer, or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the related Originator, the Seller or the Depositor, as the case may be shall repurchase or, subject to the limitations set forth in Section 2.03(c), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall cause such repurchase or substitution to be made by (i) the related Originator, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the related Originator under the applicable Mortgage Loan Purchase Agreement, (ii) the Seller, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee shall reconvey to the related Originator, the Seller or the Depositor, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.such
Appears in 1 contract
Sources: Pooling and Servicing Agreement (MASTR Asset Backed Securities Trust 2004-He1)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller Originator or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, a Mortgage File or that any document in a Mortgage File is materially inconsistent with the Mortgage File Loan Schedule or of the breach by any the Originator or the Seller of any representation, representation or warranty or covenant under each the Originator Mortgage Loan Purchase Agreement or the Letter Mortgage Loan Purchase Agreement, as applicable, in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan Loan, Prepayment Charge or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee shall promptly notify the Seller and the related Servicer of such defect, missing document or breach and cause such Originator or Seller, as applicable, to deliver such missing document or cure such defect or breach within 90 days from the date the Originator or Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may be, the Servicer and the NIMS Insurer of such defect, missing document or breach and request that, in the case of a defective or missing document, the Seller cure such defect or deliver such missing document within 120 days from the date the Seller was notified of such missing document or defect or, in the case of a beach of a representation or warranty, request the Originator or the Seller, as applicable, cure such breach within 90 days from the date the Originator or the Seller, as the case may be, was notified of such breach. If the Seller does not deliver such missing document or cure such defect or if the Originator or the Seller, as applicable, does not cure such breach in all material respects during such period, the Trustee shall enforce the obligations of such Originator's or the Seller's obligation, as the case may be, under the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as applicable, and cause the Originator or the Seller, as applicable, under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, to repurchase such Mortgage Loan from the Trust Fund at the Purchase Price within 90 days after on or prior to the date on which Determination Date following the expiration of such Originator or the Seller, as applicable, was notified period (subject to Section 2.03(d)) of such missing document, defect or breach, if and to the extent that such Originator or the Seller, as applicable, is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so). The Purchase Price for the repurchased Mortgage Loan shall be deposited in the Distribution Collection Account, and the Trustee, upon receipt of written notice from the Servicer of such deposit, shall release (or shall cause the Custodian to release release) to such the Originator or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such the Originator or the Seller, as the case may be, any Mortgage Loan released pursuant hereto, hereto and the Trustee and the Custodian shall have no further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement Originator or the Letter AgreementSeller, as applicable, the related Originator, the Seller or the Depositor, as applicablecase may be, may cause such Mortgage Loan to be removed from the Trust Fund (in which case it shall become a Deleted Defective Mortgage Loan) and substitute one or more Qualified Eligible Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c); provided, however, the Originator or the Seller, as applicable, may not substitute an Eligible Substitute Mortgage Loan for any Defective Mortgage Loan that violates any predatory or abusive lending law. With respect to the representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement that are made to the best of the Originator's or the Seller's knowledge, as applicable, or as to which the Originator or the Seller, as the case may be, has no knowledge, if it is discovered by the Depositor, the Servicer, the NIMS Insurer or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, Prepayment Charge or the interest therein of the Certificateholders then, notwithstanding the Originator's or the Seller's lack of knowledge with respect to the substance of such representation and warranty being inaccurate at the time the representation or warranty was made, such inaccuracy shall be deemed a breach of the applicable representation or warranty. It is understood and agreed that the obligation representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement shall survive delivery of the related Originator, Mortgage Files to the Trustee (or the Custodian on behalf of the Trustee) and the Closing Date and shall inure to the benefit of the Certificateholders notwithstanding any restrictive or qualified endorsement or assignment. It is understood and agreed that the obligations of the Originator and the Seller set forth in this Section 2.03(a) to cure, substitute for or repurchase a Mortgage Loan pursuant to the Originator Mortgage Loan Purchase Agreement or the DepositorMortgage Loan Purchase Agreement, as applicable, and to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall pay the Reimbursement Amount constitute the sole remedy respecting such omission, defect or breach remedies available to the Certificateholders and to the Trustee on their behalf respecting a breach of the Certificateholdersrepresentations and warranties contained in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement, as applicable. The representations and warranties of the Originator with respect to the Mortgage Loans in the Originator Mortgage Loan Purchase Agreement, which have been assigned to the Trustee hereunder, were made as of the dates specified in the Originator Mortgage Loan Purchase Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Originator under the Originator Mortgage Loan Purchase Agreement and (ii) a representation or warranty of the Seller under the Mortgage Loan Purchase Agreement (other than Seller's representations with respect to predatory and abusive lending laws in Sections 3.01(i), (ii) and (iii) of the Mortgage Loan Purchase Agreement), the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's right to enforce the obligations of the Originator under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans (except as otherwise set forth in this paragraph) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Originator in the Originator Mortgage Loan Purchase Agreement, without regard to whether the Originator fulfills its contractual obligations in respect of such representation or warranty. In addition, to the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (x) the Originator's representation with respect to predatory and abusive lending laws in Sections 3.03(i), (tt), (uu) and (ggg) of the Originator Mortgage Loan Purchase Agreement and (y) the Seller's representation with respect to predatory and abusive lending laws in Sections 3.01(i), (ii) and (iii) of the Mortgage Loan Purchase Agreement, the Originator shall be obligated to pay the Reimbursement Amount relating to such Mortgage Loan, and, to the extent the Originator fails to do so, the Trustee shall be entitled to enforce the Seller's obligation to pay such Reimbursement Amount. In any event, the Reimbursement Amount shall be delivered to the Servicer for deposit into the Collection Account within ten (10) days from the date the Seller was notified by the Trustee of the Reimbursement Amount.
(ib) As promptly as practicable (and no later than Within 90 days) after days of the earlier of discovery by the related Servicer or receipt of notice by the related Servicer of the breach of any representation, warranty or covenant of such the Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(c) Any substitution of Qualified Eligible Substitute Mortgage Loans for Deleted Defective Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which last Business Day that is within two (2) years after the Closing Date for the Trust FundDate. As to any Deleted Defective Mortgage Loan for which an Originator, the Originator or the Seller or the Depositor substitutes a Qualified an Eligible Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, delivering to the Trustee (or the Custodian on behalf of the Trustee, ) for such Qualified Eligible Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee (or the Custodian on behalf of the Trustee), and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Eligible Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Amount Adjustment (as described below), if any, in connection with such substitution. The Trustee shall acknowledge or shall cause the Custodian shall to acknowledge receipt for such Qualified Eligible Substitute Mortgage Loan or Loans and, within ten (10) Business Days thereafter, shall review or shall cause the Custodian to review such documents as specified in Section 2.02 and deliver to the Trustee, the Depositor Servicer and the related ServicerNIMS Insurer, with respect to such Qualified Eligible Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1F-1, with any applicable exceptions noted thereon. Within one (1) year of the date of substitution, the Trustee shall deliver or shall cause the Custodian shall to deliver to the Depositor Servicer and the related Servicer NIMS Insurer a certification substantially in the form of Exhibit C-2 F-2 hereto with respect to such Qualified Eligible Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Eligible Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund and will be retained by the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on collections and recoveries in respect of such Deleted Defective Mortgage Loan on or before the Due Date in the month Collection Period or Prepayment Period, as applicable, preceding the date of substitution, substitution and the related OriginatorDepositor, the Seller Originator or the DepositorSeller, as the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Defective Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Defective Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Eligible Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee, the Servicer, the Custodian and the NIMS Insurer. Upon such substitution, such Qualified Eligible Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and, in the case of a substitution effected by the Originator or the Seller, the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as the case may be, including, in the case of a substitution effected by an Originator, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by Originator or the Seller, all applicable representations and warranties thereof included in the Letter Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, in each as the case may be, as of the date of substitution. For any month in which an Originator, the Originator or the Seller or the Depositor substitutes one or more Qualified Eligible Substitute Mortgage Loans for one or more Deleted Defective Mortgage Loans, the related Servicer will determine the amount (the "Substitution Shortfall AmountAdjustment"), if any, by which the aggregate Purchase Price of all such Deleted Defective Mortgage Loans exceeds the aggregate ofaggregate, as to each such Qualified Eligible Substitute Mortgage Loan, of the Stated Principal Balance principal balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance principal balance at the applicable Net Mortgage Interest Rate, plus all outstanding P&I Advances and Servicing Advances. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller Originator or the DepositorSeller, as the case may be, will deliver or cause to be delivered to the applicable Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall AmountAdjustment, if any, and the Trustee, upon receipt of the related Qualified Eligible Substitute Mortgage Loan or Loans and certification notice by the applicable Servicer of such deposit, shall release (or shall cause the Custodian to release) to the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor Originator or the Seller, as the case may be, shall deliver to it and as shall be necessary to vest therein any Deleted Defective Mortgage Loan released pursuant hereto. In addition, in connection with the related substitution of one or more Eligible Substitute Mortgage Loans for one or more Defective Mortgage Loans, in the event the Trust incurs costs or damages arising in connection with a breach of the Originator's representations with respect to predatory or abusive lending laws set forth in Section 3.03(i) and Section 3.03(uu) of the Originator Mortgage Loan Purchase Agreement, the Depositor Seller shall be required to reimburse the Trust for the Reimbursement Amount pursuant to the Mortgage Loan Purchase Agreement to the extent the Originator fails to do so. In addition, the Originator or the Seller, as the case may beapplicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to an Adverse REMIC Event. If such Opinion of Counsel can not be imposed on any delivered, then such substitution may only be effected at such time as the required Opinion of the REMICs, created hereunder, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any REMIC hereunder to fail to qualify as a REMIC at any time that any Certificate is outstandingCounsel can be given.
(d) Upon discovery by the DepositorOriginator, the Seller, a the Servicer, the NIMS Insurer, the Custodian or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two (2) Business Days give written notice thereof to the other parties. In connection therewith, the related Originator, the Seller Originator or the DepositorSeller, as the case may be applicable, shall repurchase or, subject to the limitations set forth in Section 2.03(c), substitute one or more Qualified Eligible Substitute Mortgage Loans for the affected Mortgage Loan within 90 ninety (90) days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall In addition, upon discovery that a Mortgage Loan is defective in a manner that would cause such repurchase or substitution it to be made by (i) a "defective obligation" within the related Originatormeaning of Treasury Regulations relating to REMICs, if the affected Mortgage Loan's status as a non-qualified mortgage is Originator or results from a breach of any representation, warranty or covenant made by the related Originator under the applicable Mortgage Loan Purchase Agreement, (ii) the Seller, if as the affected Mortgage Loan's status as a non-qualified mortgage is case may be, shall cure the defect or results from a breach of any representation, warranty make the required purchase or covenant made by substitution no later than ninety (90) days after the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty discovery of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any representation or warrantydefect. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee (or the Custodian on behalf of the Trustee) shall reconvey to the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (CHEC Loan Trust 2004-2 Asset-Backed Certificates, Series 2004-2)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller an Originator or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, the a Mortgage File or of the breach by any an Originator or the Seller Seller, as applicable, of any representation, warranty or covenant under each Mortgage Loan Purchase a Master Agreement or the Letter an Assignment Agreement, as applicable, in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee shall promptly notify the Seller and the related Servicer of such defect, missing document or breach and cause such Servicer (or, if the Servicer is an Affiliate of the related Originator, the Trustee) shall request that the related Originator or Seller, as applicable, to deliver such missing document or that the related Originator cure such defect or breach within 90 days from the date the such Originator or Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by the Originator under the applicable Mortgage Loan Purchase Agreement. If , and if such Originator or the Seller, as the case may be, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee Servicer (or, if the Servicer is an Affiliate of the related Originator, the Trustee) shall use commercially reasonable efforts to attempt to enforce such Originator's obligation under the obligations of such related Master Agreement or the Seller's obligation under the related Assignment Agreement and notify the Originator or the Seller, as applicable, under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, of its obligation to repurchase such Mortgage Loan from the Trust Fund at the Purchase Price within on or prior to the Determination Date following the expiration of such 90 days after the date on which such Originator or the Seller, as applicable, was notified day period (subject to Section 2.03(d2.03(e)) of such missing document); provided, defect or breachhowever, if and to the extent that such Originator Servicer or the SellerTrustee shall not be under any obligation to take any action pursuant to this paragraph unless directed by the Depositor and provided, as applicablefurther, is obligated the Depositor hereby agrees to do so assist such Servicer or the Trustee in enforcing any obligations of any Originator to repurchase or substitute for a Mortgage Loan which has breached a representation or warranty under the related Mortgage Loan Purchase Agreement or the Letter Assignment Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so. The Purchase Price for the repurchased Mortgage Loan shall be deposited remitted to the related Servicer for deposit in the Distribution related Collection Account, and the Trustee, upon receipt of written certification from the related Servicer of such deposit, shall release or cause to the Custodian to release to such related Originator or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such the related Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such the related Originator or the Seller, as the case may beapplicable, any Mortgage Loan released pursuant hereto, hereto and the Trustee shall have no further responsibility with regard to such Mortgage FileFile (it being understood that the Trustee shall have no responsibility for determining the sufficiency of such assignment for its intended purpose). In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement an Originator or the Letter Agreement, as applicable, the related Originator, the Seller or the DepositorSeller, as applicable, may cause such Mortgage Loan to be removed from the Trust Fund (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c2.03(d); provided, however, the Seller may not substitute for any Mortgage Loan which breaches a representation or warranty regarding abusive or predatory lending laws. In furtherance of the foregoing, if an Originator or the Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS(R) System, such Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to such Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. It is understood and agreed that the obligation of the related Originator, the Seller an Originator or the DepositorSeller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy against any Originator or the Seller, as applicable, respecting such omission, defect or breach available to the Trustee on behalf of the Certificateholders.
(ib) As promptly as practicable (and no later than Within 90 days) after days of the earlier of discovery by the related Depositor or receipt of notice by the Depositor of the breach of any representation, warranty or covenant of the Depositor set forth in Section 2.06, which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Depositor shall cure such breach in all material respects.
(c) Within 90 days of the earlier of discovery by either Servicer or receipt of notice by the related either Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(cd) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which last Business Day that is within two years after the Closing Date for the Trust FundDate. As to any Deleted Mortgage Loan for which an Originator, the Seller Originator or the Depositor Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, delivering to the Custodian on behalf of the Trustee, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, Mortgage and the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Amount Adjustment (as described below), if any, in connection with such substitution. The Trustee or the Custodian shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days 45 days thereafter, shall review such documents as specified in Section 2.02 and the Trustee shall deliver to the Trustee, the Depositor and the related Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee or the Custodian shall deliver to the Depositor and the related Servicer a certification substantially in the form of Exhibit C-2 F-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund and will be retained by the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on collections and recoveries in respect of such Deleted Mortgage Loan on or before in the Due Date in Period preceding the month of substitution, substitution and the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders Trustee, who shall forward such notice to the Certificateholders, that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitutionsubstitution by an Originator or the Seller, as applicable, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the related Assignment Agreement, including, in the case of a substitution effected by an Originator, including all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by the Seller, all applicable representations and warranties thereof included in the Letter Agreement, in each case such Assignment Agreement as of the date of substitution. For any month in which an Originator, the Seller Originator or the Depositor Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Servicer will determine the amount (the "Substitution Shortfall AmountAdjustment"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate ofaggregate, as to each such Qualified Substitute Mortgage Loan, of the Stated Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance at the applicable Net Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, will deliver or cause to be delivered to the applicable related Servicer for deposit in the its Collection Account an amount equal to the Substitution Shortfall AmountAdjustment, if any, and the Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification by the applicable Servicer of such deposit, shall release to the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor such Originator or the Seller, as the case may beapplicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereunderTrust Fund, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1860F(a)(I) of the Code or on "contributions after the startup date" under Section 860G(d)(1860G(d)(I) of the Code, Code or (b) any REMIC 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.
(de) Upon discovery by the Depositor, the Seller, a Servicer, either Servicer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other partiesparties hereto. In connection therewith, the related Originator, the Seller Originator or the Depositor, as the case may be be, shall repurchase or, subject to the limitations set forth in Section 2.03(c2.03(d), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall cause such Such repurchase or substitution to shall be made by (i) by the related Originator, Originator if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the related such Originator under the applicable Mortgage Loan Purchase Agreement, related Assignment Agreement or (ii) the Seller, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.042.06, or if its status as a non-qualified mortgage is a breach of any no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a) or 2.03(d), if made by an Originator, or Section 2.03(b), if made by the Depositor. The Trustee shall reconvey to the Depositor or the related Originator, the Seller or the Depositor, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
(f) Upon discovery or receipt of written notice of a breach by the Seller of any representation, warranty or covenant made by the Seller under the Assignment Agreement in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, and if either (i) such Mortgage Loan is not in breach of any representation, warranty or covenant of the related Originator or (ii) the related Originator has failed to remedy such representation, warranty or covenant with respect to such Mortgage Loan, then the Trustee shall promptly notify the Servicer of such breach and the Servicer shall request that the Seller remedy such breach by the Seller, to the extent provided in the Assignment Agreement, in the manner and within the time periods set forth in the Assignment Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Soundview Home Loan Trust 2005-A)
Repurchase or Substitution. of Mortgage Loans by the Originators, Originators and the Seller or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, the a Mortgage File or of the breach by the Originator of any Originator representation, warranty or covenant under the Master Agreement or by the Seller of any representation, warranty or covenant under each Mortgage Loan Purchase the Assignment Agreement or the Letter Agreement, as applicable, in respect of any Mortgage Loan which that materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificate Insurer, the Trustee shall promptly notify the Seller Seller, the Originator, the Certificate Insurer and the related Servicer of such defect, missing document or breach and cause such request that the Originator or the Seller, as applicable, to deliver such missing document or cure such defect or breach within 90 60 days from the date the Originator or the Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by , and if the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may beapplicable, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee Servicer, in accordance with Section 3.02(b), shall enforce the obligations of such Originator or the Seller, as applicableOriginator, under the related Mortgage Loan Purchase Master Agreement or and the Letter Agreement, as Seller under the case may be, Assignment Agreement to repurchase such Mortgage Loan from the Trust Fund REMIC I at the Purchase Price within 90 days after the date on which such the Originator or the Seller, as applicable, was notified (subject to Section 2.03(d2.03(c)) of such missing document, defect or breach, if and to the extent that such the Originator or the Seller, as applicable, is obligated to do so under the related Mortgage Loan Purchase Master Agreement or the Letter Seller is obligated to do so under the Assignment Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so. The Purchase Price for the repurchased Mortgage Loan shall be deposited remitted to the Servicer for deposit in the Distribution Account, Collection Account and the Trustee, upon receipt of written certification from the Servicer of such deposit, shall release or cause to the Custodian to release to such Originator or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such the Originator or the Seller, as the case may beapplicable, any Mortgage Loan released pursuant hereto. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Servicer (at the expense of the Originator or the Seller, as applicable, without any right of reimbursement), shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. The Trustee shall not have no any further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Master Agreement or the Letter Assignment Agreement, as applicable, the related Originator, the Seller Originator or the DepositorSeller, as applicable, may cause such Mortgage Loan to be removed from the Trust Fund REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c2.03(b). It is understood and agreed that the obligation of the related Originator, Originator and the Seller or the Depositor, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee on behalf of and the Certificateholders.
(i) As promptly as practicable (and no later than 90 days) after the earlier of discovery by the related Servicer or receipt of notice by the related Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(cb) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which is two years after the Closing Date Startup Day for the Trust Fund. REMIC I. As to any Deleted Mortgage Loan for which an Originator, the Originator or the Seller or the Depositor substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, delivering to the Custodian on behalf of the Trustee, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Amount (as described below), if any, in connection with such substitution. The Trustee or the Custodian shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, shall review such documents as specified in Section 2.02 and deliver to the TrusteeDepositor, the Depositor Certificate Insurer and the related Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee or the Custodian shall deliver to the Depositor Depositor, the Originator, the Certificate Insurer and the related Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund REMIC I and will be retained by the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the Certificate Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement, the Master Agreement and the Assignment Agreement, including, in the case of a substitution effected by an Originator, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Master Agreement and Assignment Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by the Seller, all applicable representations and warranties thereof included in the Letter Agreement, in each case as of the date of substitution. For any month in which an Originator, the Seller either Originator or the Depositor Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Servicer will determine the amount (the "Substitution Shortfall Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the Stated Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance at the applicable Net Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, will deliver or cause to be delivered to the applicable Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall Amount, if any, and the Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification by the applicable Servicer of such deposit, shall release to the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall obtain at its own expense and deliver to the Trustee and the Certificate Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereunderTrust REMIC, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any Trust REMIC hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding.
(dc) Upon discovery by the Depositor, the Seller, a the Servicer, the Certificate Insurer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the related Originator, the Seller or the Depositor, as the case may be shall repurchase or, subject to the limitations set forth in Section 2.03(c2.03(b), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall cause such repurchase or substitution to be made by (i) the related Originator, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the related Originator under the applicable Mortgage Loan Purchase Agreement, (ii) the Seller, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee shall reconvey to the related Originator, the Seller or the Depositor, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust, Series 2004-Res1)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller or the Depositor; Payment of Prepayment Charges in the event of breach.
(a) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, the a Mortgage File or of the breach by any Originator or the Seller of any representation, warranty or covenant under each the Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, in respect of any Mortgage Loan which that materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee shall promptly notify the Seller Seller, the Master Servicer and the related Servicer Certificate Insurer of such defect, missing document or breach and cause such Originator or Seller, as applicable, to request that the Seller deliver such missing document or cure such defect or breach within 90 60 days from the date the Originator or Seller, as applicable, Seller was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by , and if the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may be, Seller does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee Trustee, in accordance with Section 3.02(b), shall enforce the obligations of such Originator or the Seller, as applicable, Seller under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, to repurchase such Mortgage Loan from the Trust Fund REMIC I at the Purchase Price within 90 days after the date on which such Originator or the Seller, as applicable, Seller was notified (subject to Section 2.03(d2.03(e)) of such missing document, defect or breach, if and to the extent that such Originator or the Seller, as applicable, Seller is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so. The Purchase Price for the repurchased Mortgage Loan shall be deposited in the Distribution Account, Collection Account and the Trustee, upon receipt of written certification from the Master Servicer of such deposit, shall release or cause to the Custodian to release to such Originator or the Seller, as applicable, Seller the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such Originator or the Seller, as applicable, Seller shall furnish to it and as shall be necessary to vest in such Originator or the Seller, as the case may be, Seller any Mortgage Loan released pursuant hereto, hereto and the Trustee shall have no further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, the related Originator, the Seller or the Depositor, as applicable, may cause such Mortgage Loan to be removed from the Trust Fund REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c2.03(d). It is understood and agreed that the obligation of the related Originator, the Seller or the Depositor, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee on behalf of the CertificateholdersCertificateholders and the Certificate Insurer.
(ib) As promptly as practicable (and no later than Subject to Section 2.03(e), within 90 days) after days of the earlier of discovery by the Depositor or receipt of notice by the Depositor of the breach of any representation or warranty of the Depositor set forth in Section 2.04 with respect to any Mortgage Loan, which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Depositor shall (i) cure such breach in all material respects, (ii) repurchase the Mortgage Loan from REMIC I at the Purchase Price or (iii) remove such Mortgage Loan from REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(d). If any such breach is a breach of any of the representations and warranties included in Section 2.04(a)(iv), and the Depositor is unable to cure such breach, the Depositor shall repurchase or substitute the smallest number of Mortgage Loans as shall be required to make such representation or warranty true and correct. The Purchase Price for any repurchased Mortgage Loan shall be delivered to the Master Servicer for deposit in the Collection Account, and the Trustee, upon receipt of written certification from the Master Servicer of such deposit, shall at the Depositor's direction release to the Depositor the related Mortgage File and shall execute and deliver such instruments of transfer or assignment furnished by the Depositor, in each case without recourse, as the Depositor shall furnish to it and as shall be necessary to vest in the Depositor any Mortgage Loan released pursuant hereto.
(c) Within 90 days of the earlier of discovery by the Master Servicer or receipt of notice by the related Master Servicer of the breach of any representation, warranty or covenant of such the Master Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Master Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(cd) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) ), in the case of the Seller, or Section 2.03(b), in the case of the Depositor, must be effected prior to the date which is two years after the Closing Date Startup Day for the Trust Fund. REMIC I. As to any Deleted Mortgage Loan for which an Originator, the Seller or the Depositor substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller or the Depositor, as the case may be, delivering to the Custodian on behalf of the Trustee, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Amount (as described below), if any, in connection with such substitution. The Trustee or the Custodian shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, review such documents as specified in Section 2.02 and deliver to the TrusteeDepositor, the Depositor Master Servicer and the related ServicerCertificate Insurer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee or the Custodian shall deliver to the Depositor Depositor, the Master Servicer and the related Servicer Certificate Insurer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund REMIC I and will be retained by the related Originator, the Seller Depositor or the DepositorSeller, as the case may be. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the related Originator, the Seller Depositor or the DepositorSeller, as the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and, in the case of a substitution effected by the Seller, the Mortgage Loan Purchase Agreement, including, in the case of a substitution effected by an Originatorthe Seller, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by the Seller, all applicable representations and warranties thereof included in the Letter Agreement, in each case as of the date of substitution. For any month in which an Originator, the Depositor or the Seller or the Depositor substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Master Servicer will determine the amount (the "Substitution Shortfall Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the Stated Scheduled Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Scheduled Principal Balance at the applicable Net Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances (including Nonrecoverable P&I Advances and Nonrecoverable Servicing Advances) related thereto. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller Depositor or the DepositorSeller, as the case may be, will deliver or cause to be delivered to the applicable Master Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall Amount, if any, and the Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification by the applicable Master Servicer of such deposit, shall release to the related Originator, the Depositor or the Seller, as the case may be, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor or the Seller, as the case may be, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor or the Seller, as the case may be, shall obtain at its own expense and deliver to the Trustee and the Certificate Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereundereither REMIC I or REMIC II, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any either REMIC hereunder I or REMIC II to fail to qualify as a REMIC at any time that any Certificate is outstanding.
(de) Upon discovery by the Depositor, the Seller, a the Master Servicer, the Trustee or the Trustee Certificate Insurer that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other partiesparties and the Certificate Insurer. In connection therewith, the related Originator, the Seller or the Depositor, as the case may be Depositor shall repurchase or, subject to the limitations set forth in Section 2.03(c2.03(d), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall cause such Such repurchase or substitution to shall be made by (i) the related Originator, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the related Originator under the applicable Mortgage Loan Purchase Agreement, (ii) the Seller, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Seller under the Letter Mortgage Loan Purchase Agreement, or (iiiii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section Sections 2.03(a), if made by the Seller, or 2.03(b), if made by the Depositor. The Trustee shall reconvey to the related Originator, the Seller Depositor or the DepositorSeller, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Salomon Br Mor Sec Vii Inc New Cen Ast BCK Fl Rt Ce 1997 Nc2)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller or the Depositor; Payment of Prepayment Charges in the event of breach.--------------------------------------------------- Seller. -------
(a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, the a Mortgage File or of the breach by any Originator or the Seller of any representation, warranty or covenant under each Mortgage Loan the Purchase Agreement or the Letter Agreement, as applicable, in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee Custodian shall promptly notify the Seller and the related Servicer of such defect, missing document or breach and cause such Originator or Seller, as applicable, to request that the Seller deliver such missing document or cure such defect or breach within no later than 90 days from the date of the Originator discovery or Seller, as applicable, was notified receipt of written notice of such missing document, defect or breach; provided that such missing document was not previously delivered by , and if the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may be, Seller does not deliver such missing document or cure such defect or breach in all material respects during such period, the Custodian shall notify the Trustee and the Trustee shall enforce the obligations of such Originator or the Seller, as applicable, 's obligation under the related Mortgage Loan Purchase Agreement or and cause the Letter Agreement, as the case may be, Seller to repurchase such Mortgage Loan from the Trust Fund at the Purchase Repurchase Price within 90 days after on or prior to the date on which such Originator or Determination Date following the Seller, as applicable, was notified (subject to Section 2.03(d)) expiration of such missing document, defect or breach, if and to the extent that such Originator or the Seller, as applicable, is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so. 90 day period.
(b) The Purchase Repurchase Price for the repurchased Mortgage Loan shall be deposited in the Distribution Collection Account, and the Trustee, upon receipt of written certification from the Servicer of such deposit, shall release or cause the Custodian to release to such Originator or the Seller, as applicable, Seller the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such Originator or the Seller, as applicable, Seller shall furnish to it and as shall be necessary to vest in such Originator or the Seller, as the case may be, Seller any Mortgage Loan released pursuant hereto, hereto and the Trustee and the Custodian shall have no further responsibility with regard to such Mortgage FileFile (it being understood that the Custodian shall have no responsibility for determining the sufficiency of such assignment for its intended purpose). In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, the related Originator, the Seller or the Depositor, as applicable, may cause such Mortgage Loan to be removed from the Trust Fund (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Eligible Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c2.03(d). It is understood and agreed that the obligation of the related Originator, the Seller or the Depositor, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy against the Seller respecting such omission, defect or breach available to the Trustee on behalf of the Certificateholders.
(ic) As promptly as practicable (and no later than Within 90 days) after days of the earlier of discovery by the related Servicer or receipt of notice by the related Servicer of the breach of any representation, warranty or covenant of such the Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(cd) Any substitution of Qualified Eligible Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which last Business Day that is within two years after the Closing Date for the Trust FundDate. As to any Deleted Mortgage Loan for which an Originator, the Seller or the Depositor substitutes a Qualified an Eligible Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller or the Depositor, as the case may be, delivering to the Custodian on behalf of the TrusteeCustodian, for such Qualified Eligible Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Eligible Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee or the Custodian shall acknowledge receipt for such Qualified Eligible Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, shall review such documents as specified in Section 2.02 and deliver to the Trustee, the Depositor and the related Servicer, with respect to such Qualified Eligible Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee or the Custodian shall deliver to the Depositor and the related Servicer a certification substantially in the form of Exhibit C-2 F-2 hereto with respect to such Qualified Eligible Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Eligible Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund and will be retained by the related Originator, the Seller or the Depositor, as the case may beSeller. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on collections and recoveries in respect of such Deleted Mortgage Loan on or before in the Due Date in Period preceding the month of substitution, substitution and the related Originator, the Seller or the Depositor, as the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor Seller shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Eligible Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the TrusteeCustodian. Upon such substitutionsubstitution by the Seller, such Qualified Eligible Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Purchase Agreement, including, in the case of a substitution effected by an Originator, including all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by the Seller, all applicable representations and warranties thereof included in the Letter Agreement, in each case Agreement as of the date of substitution. For any month in which an Originator, the Seller or the Depositor substitutes one or more Qualified Eligible Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Servicer will determine the amount (the "Substitution Shortfall Adjustment Amount"), if any, by which the aggregate Purchase Repurchase Price of all such Deleted Mortgage Loans exceeds the aggregate ofaggregate, as to each such Qualified Eligible Substitute Mortgage Loan, of the Stated Principal Balance principal balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance principal balance at the applicable Net Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller or the Depositor, as the case may be, will deliver or cause to be delivered to the applicable Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall Adjustment Amount, if any, and the TrusteeCustodian, upon receipt of the related Qualified Eligible Substitute Mortgage Loan or Loans and certification by the applicable Servicer of such deposit, shall release to the related Originator, the Depositor or the Seller, as the case may be, Seller the related Mortgage File or Files and the Trustee Custodian or the Trustee, as applicable, shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor or the Seller, as the case may be, Seller shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor or the Seller, as the case may be, Seller shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereunderTrust Fund, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1860F(a)(l) of the Code or on "contributions after the startup date" under Section 860G(d)(1860G(d)(l) of the Code, or (b) any REMIC 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.
(de) Upon discovery by the DepositorSeller, the Seller, a Servicer, the Custodian or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the related Originator, the Seller or the DepositorCompany, as the case may be be, shall repurchase or, subject to the limitations set forth in Section 2.03(c2.03(d), substitute one or more Qualified Eligible Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall cause such Such repurchase or substitution to shall be made by (i) the related Originator, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the related Originator under the applicable Mortgage Loan Purchase Agreement, (ii) the Seller, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee Custodian, on behalf of the Trustee, shall reconvey to the related Originator, the Seller or the Depositor, as the case may beSeller, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Novastar Mortgage Funding Corp Home Equity Loan Ser 2003-4)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller Originator or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, the a Mortgage File or of the breach by any the Originator or the Seller of any representation, warranty or covenant under each the Mortgage Loan Purchase Agreement (including any representation, warranty or covenant regarding the Letter Agreement, as applicable, Prepayment Charge Schedule) in respect of any Mortgage Loan which that materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee shall promptly notify the Originator, the NIMS Insurer, the Seller and the related Servicer of such defect, missing document or breach and cause such request that the Originator or the Seller, as applicable, to deliver such missing document or cure such defect or breach within 90 days from the date the Originator or the Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by , and if the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may beapplicable, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee shall enforce the obligations of such the Originator or the Seller, as applicable, under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, to repurchase such Mortgage Loan from the Trust Fund REMIC I at the Purchase Price within 90 days after the date on which such the Originator or the Seller, as applicable, was notified (subject to Section 2.03(d2.03(c)) of such missing document, defect or breach, if and to the extent that such the Originator or the Seller, as applicable, is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so. The Purchase Price for the repurchased Mortgage Loan shall be deposited remitted to the Servicer for deposit in the Distribution Account, Collection Account and the Trustee (or the Custodian on behalf of the Trustee), upon receipt of written certification from the Servicer of such deposit, shall release or cause to the Custodian to release to such Originator or the Seller, as applicable, the related Mortgage File and the Trustee (or the Custodian on behalf of the Trustee) shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such the Originator or the Seller, as the case may beapplicable, any Mortgage Loan released pursuant hereto. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. Neither the Trustee nor the Custodian shall have no any further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement Agreement, the Originator or the Letter Agreement, as applicable, the related Originator, the Seller or the DepositorSeller, as applicable, may cause such Mortgage Loan to be removed from the Trust Fund REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c2.03(b). It is understood and agreed that the obligation of the related Originator, the Seller Originator or the DepositorSeller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee on behalf of and the Certificateholders.
(i) As promptly as practicable (and no later than 90 days) after the earlier of discovery by the related Servicer or receipt of notice by the related Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(cb) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which is two years after the Closing Date Startup Day for the Trust Fund. REMIC I. As to any Deleted Mortgage Loan for which an Originator, the Seller Originator or the Depositor Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, delivering to the Trustee (or the Custodian on behalf of the Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee (or the Custodian on behalf of the Trustee) shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, review such documents as specified in Section 2.02 and deliver to the TrusteeDepositor, the Depositor NIMS Insurer and the related Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee (or the Custodian on behalf of the Trustee) shall deliver to the Depositor Depositor, the NIMS Insurer and the related Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund REMIC I and will be retained by the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee, the Custodian and the NIMS Insurer. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Mortgage Loan Purchase Agreement, including, in the case of a substitution effected by an Originator, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by the Seller, all applicable representations and warranties thereof included in the Letter Agreement, in each case as of the date of substitution. For any month in which an Originator, the Seller Originator or the Depositor Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Servicer will determine the amount (the "Substitution Shortfall Adjustment Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the Stated Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance at the applicable Net Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, will deliver or cause to be delivered to the applicable Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall Adjustment Amount, if any, and the Trustee (or the Custodian on behalf of the Trustee), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification by the applicable Servicer of such deposit, shall release to the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, the related Mortgage File or Files and the Trustee (or the Custodian on behalf of the Trustee) shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereunderTrust REMIC, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any Trust REMIC hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding.
(dc) Upon discovery by the Depositor, the NIMS Insurer, the Originator, the Seller, a Servicer, the Servicer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the related Originator, the Seller or the Depositor, as the case may be Depositor shall repurchase or, subject to the limitations set forth in Section 2.03(c2.03(b), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall cause such Such repurchase or substitution to shall be made by (i) the related OriginatorOriginator or the Seller, as the case may be, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the related Originator or the Seller, as the case may be, under the applicable Mortgage Loan Purchase Agreement, or (ii) the Seller, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee (or the Custodian on behalf of the Trustee) shall reconvey to the related OriginatorDepositor, the Seller Originator or the DepositorSeller, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Mortgage Asset Sec Trans Inc Mort Pas THR Cert Se 03 WMC)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller Originator or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, the a Mortgage File or of the breach by any the Originator or the Seller of any representation, representation or warranty or covenant under each the Originator Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, Mortgage Loan Purchase Agreement in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan Loan, Prepayment Charge or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee shall promptly notify the Seller and the related Servicer of such defect, missing document or breach and cause such Originator or Seller, as applicable, to deliver such missing document or cure such defect or breach within 90 days from the date the Originator or Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may be, and the Master Servicer of such defect, missing document or breach and request that, in the case of a defective or missing document, the Seller cure such defect or deliver such missing document within 120 days from the date the Seller was notified of such missing document or defect or, in the case of a beach of a representation or warranty, request the Originator or the Seller, as applicable, cure such breach within 90 days from the date the Originator or the Seller, as the case may be, was notified of such breach. If the Seller does not deliver such missing document or cure such defect or if the Originator or the Seller, as applicable, does not cure such breach in all material respects during such period, the Trustee shall enforce the obligations of such Originator's or the Seller's obligation, as the case may be, under the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as applicable, and cause the Originator or the Seller, as applicable, under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, to repurchase such Mortgage Loan from the Trust Fund at the Purchase Price within 90 days after on or prior to the date on which Determination Date following the expiration of such Originator or the Seller, as applicable, was notified period (subject to Section 2.03(d)) of such missing document, defect or breach, if and to the extent that such Originator or the Seller, as applicable, is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so). The Purchase Price for the repurchased Mortgage Loan shall be deposited in the Distribution Collection Account, and the Trustee, upon receipt of written notice from the Master Servicer of such deposit, shall release or cause to the Custodian to release to such Originator or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such the Originator or the Seller, as the case may be, any Mortgage Loan released pursuant hereto, hereto and the Trustee shall have no further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement Originator or the Letter AgreementSeller, as applicable, the related Originator, the Seller or the Depositor, as applicablecase may be, may cause such Mortgage Loan to be removed from the Trust Fund (in which case it shall become a Deleted Defective Mortgage Loan) and substitute one or more Qualified Eligible Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c). In addition to the foregoing, if the Purchase Price for a repurchased Mortgage Loan does not fully compensate the Trust for any costs or damages incurred by the Trust in connection with a breach of the Originator's representation set forth in Section 3.03(i) of the Originator Mortgage Loan Purchase Agreement with respect to such repurchased Mortgage Loan, the Seller shall reimburse the Trust the amount necessary to fully compensate the Trust (the "Reimbursement Amount"). The Reimbursement Amount shall be delivered to the Master Servicer for deposit into the Collection Account within 10 days from the date the Seller was notified by the Trustee of the Reimbursement Amount. With respect to the representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement that are made to the best of the Originator's or the Seller's knowledge, as applicable, or as to which the Originator or the Seller, as the case may be, has no knowledge, if it is discovered by the Depositor, the Master Servicer or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, Prepayment Charge or the interest therein of the Certificateholders then, notwithstanding the Originator's or the Seller's lack of knowledge with respect to the substance of such representation and warranty being inaccurate at the time the representation or warranty was made, such inaccuracy shall be deemed a breach of the applicable representation or warranty. It is understood and agreed that the obligation representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement shall survive delivery of the related Originator, Mortgage Files to the Trustee and shall inure to the benefit of the Certificateholders notwithstanding any restrictive or qualified endorsement or assignment. It is understood and agreed that the obligations of the Originator and the Seller set forth in this Section 2.03(a) to cure, substitute for or the Depositor, as applicable, to cure or to repurchase (or to substitute for) any a Mortgage Loan as pursuant to which a document is missing, a material defect in a constituent document exists or as the Mortgage Loan Purchase Agreement and to which such a breach has occurred and is continuing shall pay the Reimbursement Amount constitute the sole remedy respecting such omission, defect or breach remedies available to the Certificateholders and to the Trustee on their behalf respecting a breach of the Certificateholdersrepresentations and warranties contained in the Mortgage Loan Purchase Agreement. The representations and warranties of the Originator with respect to the Mortgage Loans in the Originator Mortgage Loan Purchase Agreement, which have been assigned to the Trustee hereunder, were made as of the dates specified in the Originator Mortgage Loan Purchase Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Originator under the Originator Mortgage Loan Purchase Agreement and (ii) a representation or warranty of the Seller under the Mortgage Loan Purchase Agreement (other than Seller's representations with respect to predatory and abusive lending laws and "high cost" loans in Sections 3.01(k) and (l) of the Mortgage Loan Purchase Agreement), the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's right to enforce the obligations of the Originator under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans (except as otherwise set forth in this paragraph) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Originator in the Originator Mortgage Loan Purchase Agreement, without regard to whether the Originator fulfills its contractual obligations in respect of such representation or warranty. In addition, to the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (x) the Originator's representation with respect to predatory and abusive lending laws in Section 3.03(i) of the Originator Mortgage Loan Purchase Agreement and (y) the Seller's representation with respect to predatory and abusive lending laws in Section 3.01(k) of the Mortgage Loan Purchase Agreement, the Trustee shall be entitled to enforce the Seller's obligation to pay any Reimbursement Amount to the extent the Originator fails to do so.
(ib) As promptly as practicable (and no later than Within 90 days) after days of the earlier of discovery by the related Master Servicer or receipt of notice by the related Master Servicer of the breach of any representation, warranty or covenant of such the Master Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Master Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(c) Any substitution of Qualified Eligible Substitute Mortgage Loans for Deleted Defective Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which last Business Day that is within two years after the Closing Date for the Trust FundDate. As to any Deleted Defective Mortgage Loan for which an Originator, the Originator or the Seller or the Depositor substitutes a Qualified an Eligible Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, delivering to the Custodian on behalf of the Trustee, Trustee for such Qualified Eligible Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Eligible Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee or the Custodian shall acknowledge receipt for such Qualified Eligible Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, shall review such documents as specified in Section 2.02 and deliver to the Trustee, the Depositor and the related Master Servicer, with respect to such Qualified Eligible Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee or the Custodian shall deliver to the Depositor and the related Master Servicer a certification substantially in the form of Exhibit C-2 F-2 hereto with respect to such Qualified Eligible Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Eligible Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund and will be retained by the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on collections and recoveries in respect of such Deleted Defective Mortgage Loan on or before the Due Date in the month Collection Period or Prepayment Period, as applicable, preceding the date of substitution, substitution and the related OriginatorDepositor, the Seller Originator or the DepositorSeller, as the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Defective Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the applicable Mortgage Loan Schedule (and Prepayment Charge Schedule, if applicable) to reflect the removal of such Deleted Defective Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Eligible Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitution, such Qualified Eligible Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and, in the case of a substitution effected by the Originator or the Seller, the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as the case may be, including, in the case of a substitution effected by an Originator, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by Originator or the Seller, all applicable representations and warranties thereof included in the Letter Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, in each as the case may be, as of the date of substitution. For any month in which an Originator, the Originator or the Seller or the Depositor substitutes one or more Qualified Eligible Substitute Mortgage Loans for one or more Deleted Defective Mortgage Loans, the related Master Servicer will determine the amount (the "Substitution Shortfall Adjustment Amount"), if any, by which the aggregate Purchase Price of all such Deleted Defective Mortgage Loans exceeds the aggregate ofaggregate, as to each such Qualified Eligible Substitute Mortgage Loan, of the Stated Principal Balance principal balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance principal balance at the applicable Net Mortgage Interest Rate, plus all outstanding P&I Advances and Servicing Advances. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller Originator or the DepositorSeller, as the case may be, will deliver or cause to be delivered to the applicable Master Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall Adjustment Amount, if any, and the Trustee, upon receipt of the related Qualified Eligible Substitute Mortgage Loan or Loans and certification notice by the applicable Master Servicer of such deposit, shall release to the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor Originator or the Seller, as the case may be, shall deliver to it and as shall be necessary to vest therein any Deleted Defective Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereunderTrust Fund, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1860F(a)(l) of the Code or on "contributions after the startup date" under Section 860G(d)(1860G(d)(l) of the Code, or (b) any REMIC 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.
(d) Upon discovery by the DepositorOriginator, the Seller, a Servicer, the Master Servicer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the related Originator, the Seller Originator or the DepositorSeller, as the case may be applicable, shall repurchase or, subject to the limitations set forth in Section 2.03(c), substitute one or more Qualified Eligible Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall In addition, upon discovery that a Mortgage Loan is defective in a manner that would cause such repurchase or substitution it to be made by (i) a "defective obligation" within the related Originatormeaning of Treasury regulations relating to REMICs, if the affected Mortgage Loan's status as a non-qualified mortgage is Originator or results from a breach of any representation, warranty or covenant made by the related Originator under the applicable Mortgage Loan Purchase Agreement, (ii) the Seller, if as the affected Mortgage Loan's status as a non-qualified mortgage is case may be, shall cure the defect or results from a breach of any representation, warranty make the required purchase or covenant made by substitution no later than 90 days after the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty discovery of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any representation or warrantydefect. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee shall reconvey to the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Asset Backed Funding Corp Abfc Asset Back Cert Ser 2003 Opt1)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller Originator or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, the a Mortgage File or of the breach by any the Originator or the Seller Seller, as applicable, of any representation, warranty or covenant under each Mortgage Loan Purchase the Master Agreement or the Letter Assignment Agreement, as applicable, in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee shall promptly notify the Seller and the related Servicer of such defect, missing document or breach and cause such the Servicer shall request that the Originator or Seller, as applicable, to deliver such missing document or that the Originator cure such defect or breach within 90 days from the date the Originator or Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by , and if the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may be, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee Servicer shall use commercially reasonable efforts to attempt to enforce the obligations of such Originator's obligation under the Master Agreement or the Seller's obligation under the Assignment Agreement and notify the Originator or the Seller, as applicable, under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, of its obligation to repurchase such Mortgage Loan from the Trust Fund at the Purchase Price within on or prior to the expiration of such 90 days after the date on which such Originator or the Seller, as applicable, was notified day period (subject to Section 2.03(d2.03(e)) ); provided, however, that the Servicer shall not be under any obligation to take any action pursuant to this paragraph unless directed by the Depositor and provided, further, the Depositor hereby agrees to assist the Servicer in enforcing any obligations of such missing document, defect the Originator to repurchase or breach, if and to the extent that such Originator substitute for a Mortgage Loan which has breached a representation or the Seller, as applicable, is obligated to do so warranty under the related Mortgage Loan Purchase Agreement or the Letter Assignment Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so. The Purchase Price for the repurchased Mortgage Loan shall be deposited remitted to the Servicer for deposit in the Distribution Collection Account, and the Trustee, upon receipt of written certification from the Servicer of such deposit, shall release or cause to the Custodian to release to such Originator or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such the Originator or the Seller, as the case may beapplicable, any Mortgage Loan released pursuant hereto, hereto and the Trustee shall have no further responsibility with regard to such Mortgage FileFile (it being understood that the Trustee shall not have any responsibility for determining the sufficiency of such assignment for its intended purpose). In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement Originator or the Letter Agreement, as applicable, the related Originator, the Seller or the DepositorSeller, as applicable, may cause such Mortgage Loan to be removed from the Trust Fund (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c2.03(d); provided, however, the Seller may not substitute for any Mortgage Loan which breaches a representation or warranty regarding abusive or predatory lending laws. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. It is understood and agreed that the obligation of the related Originator, the Seller Originator or the DepositorSeller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy against the Originator or the Seller, as applicable, respecting such omission, defect or breach available to the Trustee on behalf of the Certificateholders.
(ib) As promptly as practicable (and no later than Within 90 days) after days of the earlier of discovery by the related Servicer Depositor or receipt of notice by the related Servicer Depositor of the breach of any representation, warranty or covenant of such Servicer the Depositor set forth in Section 2.05 2.06, which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer Depositor shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(c) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which is two years after the Closing Date for the Trust Fund. As to any Deleted Mortgage Loan for which an Originator, the Seller or the Depositor substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller or the Depositor, as the case may be, delivering to the Custodian on behalf of the Trustee, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Amount (as described below), if any, in connection with such substitution. The Trustee or the Custodian shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, review such documents as specified in Section 2.02 and deliver to the Trustee, the Depositor and the related Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee or the Custodian shall deliver to the Depositor and the related Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund and will be retained by the related Originator, the Seller or the Depositor, as the case may be. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the related Originator, the Seller or the Depositor, as the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement, including, in the case of a substitution effected by an Originator, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by the Seller, all applicable representations and warranties thereof included in the Letter Agreement, in each case as of the date of substitution. For any month in which an Originator, the Seller or the Depositor substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Servicer will determine the amount (the "Substitution Shortfall Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the Stated Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance at the applicable Net Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller or the Depositor, as the case may be, will deliver or cause to be delivered to the applicable Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall Amount, if any, and the Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification by the applicable Servicer of such deposit, shall release to the related Originator, the Depositor or the Seller, as the case may be, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor or the Seller, as the case may be, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor or the Seller, as the case may be, shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereunder, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any REMIC hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding.
(d) Upon discovery by the Depositor, the Seller, a Servicer, or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the related Originator, the Seller or the Depositor, as the case may be shall repurchase or, subject to the limitations set forth in Section 2.03(c), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall cause such repurchase or substitution to be made by (i) the related Originator, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the related Originator under the applicable Mortgage Loan Purchase Agreement, (ii) the Seller, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee shall reconvey to the related Originator, the Seller or the Depositor, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller or the DepositorOriginator; Payment of Prepayment Charges in the event Event of breachBreach.
(a) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, the Mortgage File or of the breach by any the Originator or the Seller of any representation, warranty or covenant under each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, set forth in Section 2.03 in respect of any Mortgage Loan which materially and adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders Noteholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the SellerOriginator, as to which such the Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made), the Indenture Trustee shall promptly notify the Seller Originator and the related Master Servicer of such defect, missing document or breach and cause such request that the Originator or Seller, as applicable, to deliver such missing document or cure such defect or breach within 90 days from the date the Originator or Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by , and if the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may be, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee Master Servicer shall enforce require the obligations of such Originator or the Seller, as applicable, under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, to repurchase such Mortgage Loan from the REMIC Trust Fund at the Purchase Price within 90 days after the date on which such the Originator or the Seller, as applicable, was notified (subject to Section 2.03(d2.04(d)) of such missing document, defect or breach; provided, if and that, in the event that such defect, missing document or breach is a result of any action of the Depositor or the Seller occurring subsequent to the extent that such purchase of the Mortgage Loans from the Originator or pursuant to the Seller, as applicable, is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do sohave the obligation to cure such defect or breach or repurchase such Mortgage Loan. The Purchase Price for the repurchased Mortgage Loan shall be deposited in the Distribution Collection Account, and the Indenture Trustee, upon receipt of written certification from the Master Servicer of such deposit, shall release or cause to the Custodian to release to such Originator or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such the Originator or the Seller, as the case may be, any Mortgage Loan released pursuant hereto, and the Indenture Trustee shall have no further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, the related Originator, the Seller or the Depositor, as applicable, Originator may cause such Mortgage Loan to be removed from the REMIC Trust Fund (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c2.04(d). It is understood and agreed that the obligation of the related Originator, the Seller or the Depositor, as applicable, Originator to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Indenture Trustee on behalf of the CertificateholdersNoteholders.
(ib) As promptly as practicable (and no later than 90 days) after the earlier of discovery by the related Master Servicer or receipt of notice by the related Master Servicer of the breach of any representation, warranty or covenant of such the Master Servicer set forth in Section 2.05 2.06 which materially and adversely affects the interests of the Certificateholders Noteholders in any Mortgage Loan, the related Master Servicer shall cure such breach in all material respects.
(iic) Within 90 days of the earlier of discovery by a the Master Servicer or receipt of notice by a the Master Servicer of the breach of any representation, warranty or covenant of such the Master Servicer set forth in Section 2.05 2.06 which materially and adversely affects the interests of the Holders of the Class P Certificates Notes to any Prepayment Charge, the related Master Servicer shall cure such breach in all material respects. If the representation made by the Master Servicer in Section 2.06(g) is breached, the Master Servicer shall pay into the Collection Account the amount of the scheduled Prepayment Charge, less any amount previously collected and paid by the Master Servicer into the Collection Account; and if the covenant made by the such Master Servicer in Section 2.05(viii2.06(h) is breached, such the Master Servicer must shall pay into the Collection Account the amount of the waived Prepayment Charge.
(cd) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a2.04(a) must be effected prior to the date which is two (2) years after the Closing Date Startup Day for the Trust FundREMIC Trust. As to any Deleted Mortgage Loan for which an Originator, the Seller or the Depositor Originator substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller or the Depositor, as the case may be, Originator delivering to the Custodian on behalf of the Indenture Trustee, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Indenture Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Amount (as described below), if any, in connection with such substitution. The Indenture Trustee or the Custodian shall acknowledge receipt for of such Qualified Substitute Mortgage Loan or Loans and, within ten (10) Business Days thereafter, review such documents as specified in Section 2.02 and deliver to the Trustee, the Depositor and the related Master Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1B-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Indenture Trustee or the Custodian shall deliver to the Depositor and the related Master Servicer a certification substantially in the form of Exhibit C-2 B-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the REMIC Trust Fund and will be retained by the related Originator, the Seller Depositor or the DepositorOriginator, as the case may be. For the month of substitution, distributions to Certificateholders Noteholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the related Originator, the Seller or the Depositor, as the case may be, Originator shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor Originator shall give or cause to be given written notice to the Certificateholders Noteholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Indenture Trustee. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement, includingAgreement and, in the case of a substitution effected by an the Originator, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.042.03, and in the case of a substitution effected by the Seller, all applicable representations and warranties thereof included in the Letter Agreement, in each case as of the date of substitution. For any month in which an Originator, the Seller or the Depositor Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Master Servicer will determine the amount (the "Substitution Shortfall Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the Stated Scheduled Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Scheduled Principal Balance at the applicable Net Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller or the Depositor, as the case may be, Originator will deliver or cause to be delivered to the applicable Master Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall Amount, if any, and the Indenture Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification by the applicable Master Servicer of such deposit, shall release to the related Originator, the Depositor or the Seller, as the case may be, Originator the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor or the Seller, as the case may be, Originator shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor or the Seller, as the case may be, Originator shall obtain at its own expense and deliver to the Indenture Trustee an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, REMIC created hereunderhereby, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any if the REMIC hereunder to fail Trust fails to qualify as a REMIC at any time that any Certificate Note is outstanding.
(de) Upon discovery by the Depositor, the SellerOriginator, a Servicer, the Master Servicer or the Indenture Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two (2) Business Days give written notice thereof to the other parties. In connection therewith, the related OriginatorOriginator or, the Seller or subject to Section 2.04(a), the Depositor, as the case may be shall repurchase or, subject to the limitations set forth in Section 2.03(c2.04(d), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall cause such repurchase or substitution to be made by (i) the related Originator, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the related Originator under the applicable Mortgage Loan Purchase Agreement, (ii) the Seller, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a2.04(a). The Indenture Trustee shall reconvey to the related Originator, the Seller or the Depositor, as the case may be, Originator the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Morgan Stanley Abs Capital I Inc)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller or the Depositor; Payment of Prepayment Charges in the event of breach.
(a) Upon discovery or receipt of notice by the Depositor, the Master Servicer, the Trust Administrator or the Trustee of any materially defective document in, or that a document is missing from, the a Mortgage File or of the breach by any an Originator or the Seller of any representation, warranty or covenant under each Mortgage Loan Purchase an Assignment Agreement or the Letter Agreement, as applicable, in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee party so discovering or receiving notice shall promptly notify the Seller other parties to this Agreement, and the Trustee thereupon shall promptly notify the related Servicer Originator and the Seller of such defect, missing document or breach and cause such request that the related Originator or Seller, as applicable, to deliver such missing document or cure such defect or that the related Originator or the Seller, as applicable, cure such breach within 90 days from the date the related Originator or the Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by , and if the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may beapplicable, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee shall enforce the obligations of such the Originator or the Seller, as applicable, under the related Mortgage Loan Purchase Assignment Agreement or the Letter Agreement, as the case may be, (i) to repurchase such Mortgage Loan from the Trust Fund REMIC I at the Purchase Price within 90 days after the date on which such Originator or the Seller, as applicable, Seller was notified (subject to Section 2.03(d2.03(e)) of such missing document, defect or breach, and (ii) to indemnify the Trust Fund in respect of such missing document, defect or breach, in the case of each of (i) and (ii), if and to the extent that such the Originator or the Seller, as applicable, is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Assignment Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so. The Purchase Price for the repurchased Mortgage Loan and any indemnification shall be deposited in remitted by the Distribution related Originator or the Seller, as applicable, to the Master Servicer for deposit into the Collection Account, and the TrusteeTrust Administrator, upon receipt of written notice from the Master Servicer of such deposit, shall give written notice to the Trustee that such deposit has taken place and the Trustee shall release (or cause the Custodian to release on its behalf) to such the related Originator or the Seller, as applicable, the related Mortgage File File, and the Trustee and the Trust Administrator shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such the related Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such the related Originator or the Seller, as the case may be, applicable,any Mortgage Loan released pursuant hereto, and the Trustee and the Trust Administrator shall have no further responsibility with regard to such Mortgage File. In furtherance of the foregoing, if the related Originator or the Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS System, the related Originator or the Seller, as applicable, pursuant to the related Assignment Agreement at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the related Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS System in accordance with MERS rules and regulations. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Assignment Agreement the related Originator or the Letter Agreement, as applicable, the related Originator, the Seller or the DepositorSeller, as applicable, may cause such Mortgage Loan to be removed from the Trust Fund REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c2.03(d). It is understood and agreed that the obligation of the related Originator, the Seller Originator or the DepositorSeller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing continuing, and if and to the extent provided in the related Assignment Agreement to perform any applicable indemnification obligations with respect to any such omission, defect or breach, as provided in such Assignment Agreement, shall constitute the sole remedy only remedies respecting such omission, defect or breach available to the Trustee or the Trust Administrator on behalf of the Certificateholders.
(ib) As promptly Notwithstanding anything to the contrary in this Section 2.03, with respect to any breach by the related Originator or the Seller, as practicable applicable, of any representation and warranty which breach materially and adversely affects the value of any Prepayment Charge or the interests of the Certificateholders therein, the Trustee shall enforce the obligation of the related Originator or the Seller, as applicable, to remedy such breach as provided in the related Assignment Agreement as follows: upon any Principal Prepayment with respect to the affected Mortgage Loan, the related Originator or the Seller, as applicable, shall pay or cause to be paid to the Purchaser the excess, if any, of (x) the amount of such Prepayment Charge calculated as set forth in the Mortgage Loan Schedule and no later than (y) the amount collected from the Mortgagor in respect of such Prepayment Charge.
(c) Within 90 days) after days of the earlier of discovery by the related Master Servicer or receipt of notice by the related Master Servicer of the breach of any representation, warranty or covenant of such the Master Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Master Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(cd) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which is two years after the Closing Date Startup Day for the Trust Fund. REMIC I. As to any Deleted Mortgage Loan for which an Originator, the Seller related Originator or the Depositor Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller related Originator or the DepositorSeller, as the case may beapplicable, delivering to the Trustee (or to the Custodian on behalf of the Trustee, as applicable), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment in blank or to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Amount (as described below), if any, in connection with such substitution. The Custodian on its behalf and on behalf of the Trustee shall, for the benefit of the Certificateholders, review each Mortgage File within 90 days after execution and delivery of this Agreement, to ascertain that all required documents have been executed, received and recorded, if applicable, and that such documents relate to the Mortgage Loans. If in the course of such review the Trustee or the Custodian shall acknowledge receipt for such Qualified Substitute on its behalf finds a document or documents constituting a part of a Mortgage Loan or Loans and, within ten Business Days thereafter, review such documents as specified File to be defective in Section 2.02 and deliver to the Trustee, the Depositor and the related Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitutionmaterial respect, the Trustee or the Custodian on its behalf shall deliver to promptly so notify the Depositor Depositor, the Trust Administrator, the related Originator, the Seller and the related Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereonMaster Servicer. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund and will be retained by the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor Trust Administrator shall give or cause to be given written notice to the Trustee and the Certificateholders that such substitution has taken place, and the Trust Administrator shall amend or cause the Custodian to amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and and, upon receipt thereof, shall deliver a copy of such amended Mortgage Loan Schedule to the TrusteeMaster Servicer. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement, including, in Agreement and the case of a substitution effected by an Originator, related Assignment Agreement (including all applicable representations and warranties thereof included in the related Mortgage Loan Purchase such Assignment Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by the Seller, all applicable representations and warranties thereof included in the Letter Agreement), in each case as of the date of substitution. For any month in which an Originator, the Seller related Originator or the Depositor Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Master Servicer will determine the amount (the "Substitution Shortfall Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the Stated Scheduled Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Scheduled Principal Balance at the applicable Net Mortgage Loan Remittance Rate, plus all outstanding P&I Advances and Servicing Advances. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, Trustee will monitor the obligation of the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, will to deliver or cause to be delivered delivered, and shall request that such delivery be to the applicable Master Servicer for deposit in the Collection Account Account, an amount equal to the Substitution Shortfall Amount, if any, and the Trustee (or the Custodian on behalf of the Trustee, as applicable), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification written notice given by the applicable Master Servicer of such deposit, shall release to the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, the related Mortgage File or Files and the Trustee and the Trust Administrator shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall obtain at its own expense and deliver to the Trustee and the Trust Administrator an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereunderTrust REMIC, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any Trust REMIC hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding.
(de) Upon discovery by the Depositor, the Seller, a Master Servicer, the Trust Administrator or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other partiesparties to this Agreement, and the Trustee shall give written notice thereof to the Seller. In connection therewith, the related Originator, the Seller Originator or the DepositorSeller, as applicable, pursuant to the case may be related Assignment Agreement or the Depositor pursuant to this Agreement shall repurchase or, subject to the limitations set forth in Section 2.03(c2.03(d), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall cause such Such repurchase or substitution to shall be made by (i) the related OriginatorOriginator or the Seller, as applicable, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the related Originator under the applicable Mortgage Loan Purchase Agreement, (ii) or the Seller, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representationapplicable, warranty or covenant made by the Seller under the Letter Agreement, related Assignment Agreement or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section Sections 2.03(a). The Trustee shall reconvey to the related OriginatorDepositor, the Seller related Originator or the DepositorSeller, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased by an Originator or the Seller for breach of a representation or warranty.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Asset Backed Pass-Through Certificates, Series 2005-He 1)
Repurchase or Substitution. of Mortgage Loans by the Originators, Originators and the Seller or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, the a Mortgage File or of the breach by any Originator the Responsible Party or the Seller of any representation, warranty or covenant under each the Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, in respect of any Mortgage Loan which that materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee shall promptly notify the Seller Seller, the Responsible Party and the related Servicer of such defect, missing document or breach and cause such Originator request that the Responsible Party or the Seller, as applicable, to deliver such missing document or cure such defect or breach within 90 60 days from the date the Originator Responsible Party or the Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by , and if the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator Responsible Party or the Seller, as the case may beapplicable, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee shall enforce the obligations of such Originator the Responsible Party or the Seller, as applicable, under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, to repurchase such Mortgage Loan from the Trust Fund REMIC I at the Purchase Price within 90 days after the date on which such Originator the Responsible Party or the Seller, as applicable, was notified (subject to Section 2.03(d2.03(c)) of such missing document, defect or breach, if and to the extent that such Originator the Responsible Party or the Seller, as applicable, Seller is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so. The Purchase Price for the repurchased Mortgage Loan shall be deposited remitted to the Servicer for deposit in the Distribution Account, Collection Account and the Trustee, upon receipt of written certification from the Servicer of such deposit, shall release or cause to the Custodian to release to such Originator Responsible Party or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such Originator the Responsible Party or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such Originator the Responsible Party or the Seller, as the case may beapplicable, any Mortgage Loan released pursuant hereto, and the . The Trustee shall not have no any further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement Agreement, the Responsible Party or the Letter Agreement, as applicable, the related Originator, the Seller or the DepositorSeller, as applicable, may cause such Mortgage Loan to be removed from the Trust Fund REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c2.03(b). It is understood and agreed that the obligation of the related Originator, Responsible Party and the Seller or the Depositor, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee on behalf of and the Certificateholders.
(i) As promptly as practicable (and no later than 90 days) after the earlier of discovery by the related Servicer or receipt of notice by the related Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(cb) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which is two years after the Closing Date Startup Day for the Trust Fund. REMIC I. As to any Deleted Mortgage Loan for which an Originator, the Responsible Party or the Seller or the Depositor substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller Responsible Party or the DepositorSeller, as the case may beapplicable, delivering to the Custodian on behalf of the Trustee, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' ’ Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Amount (as described below), if any, in connection with such substitution. The Trustee or the Custodian shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, shall review such documents as specified in Section 2.02 and deliver to the Trustee, the Depositor and the related Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee or the Custodian shall deliver to the Depositor and the related Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund REMIC I and will be retained by the related Originator, the Seller Responsible Party or the DepositorSeller, as the case may beapplicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the related Originator, the Seller Responsible Party or the DepositorSeller, as the case may beapplicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Mortgage Loan Purchase Agreement, including, in the case of a substitution effected by an Originator, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by the Seller, all applicable representations and warranties thereof included in the Letter Agreement, in each case as of the date of substitution. For any month in which an Originator, the Seller Responsible Party or the Depositor Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Servicer will determine the amount (the "“Substitution Shortfall Amount"”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the Stated Principal Balance thereof as of the date of substitution, together with one month's ’s interest on such Stated Principal Balance at the applicable Net Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller Responsible Party or the DepositorSeller, as the case may beapplicable, will deliver or cause to be delivered to the applicable Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall Amount, if any, and the Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification by the applicable Servicer of such deposit, shall release to the related Originator, the Depositor Responsible Party or the Seller, as the case may beapplicable, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor Responsible Party or the Seller, as the case may beapplicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor Responsible Party or the Seller, as the case may beapplicable, shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereunderTrust REMIC, including without limitation, any federal tax imposed on "“prohibited transactions" ” under Section 860F(a)(1) of the Code or on "“contributions after the startup date" ” under Section 860G(d)(1) of the Code, or (b) any Trust REMIC hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding.
(dc) Upon discovery by the Depositor, the Seller, a Servicer, Servicer or the Trustee that any Mortgage Loan does not constitute a "“qualified mortgage" ” within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the related Originator, the Seller or the Depositor, as the case may be Responsible Party shall repurchase or, subject to the limitations set forth in Section 2.03(c2.03(b), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall cause such repurchase or substitution to be made by (i) the related Originator, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the related Originator under the applicable Mortgage Loan Purchase Agreement, (ii) the Seller, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee shall reconvey to the related Originator, the Seller or the Depositor, as the case may be, Responsible Party the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Carrington Mortgage Loan Trust, Series 2005-Nc3)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller Originators or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, the a Mortgage File or of the breach by any Originator the Originators or the Seller of any representationrepresentation or warranty under the related Originator Mortgage Loan Purchase Agreement, warranty or covenant under each the Mortgage Loan Purchase Agreement or the Letter Additional Mortgage Loan Purchase Agreement, as applicable, in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan Loan, Prepayment Charge or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee shall promptly notify the Seller and the related Servicer of such defect, missing document or breach and cause such Originator or Seller, as applicable, to deliver such missing document or cure such defect or breach within 90 days from the date the Originator or Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may be, the Servicer and the NIMS Insurer of such defect, missing document or breach and request that, in the case of a defective or missing document, the Seller cure such defect or deliver such missing document within 120 days from the date the Seller was notified of such missing document or defect or, in the case of a beach of a representation or warranty, request the related Originator or the Seller, as applicable, cure such breach within 90 days from the date the applicable Originator or the Seller, as the case may be, was notified of such breach. Notwithstanding the foregoing, any breach of a Deemed Material and Adverse Representation with respect to a Group 1 Mortgage Loan or Group 2 Mortgage Loan shall automatically be deemed to materially and adversely affect such Mortgage Loan or the interest of the related Certificateholders therein. If the Seller does not deliver such missing document or cure such defect or if the related Originator or the Seller, as applicable, does not cure such breach in all material respects during such period, the Trustee shall enforce such Originator's or the obligations of Seller's obligation, as the case may be, under the applicable Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, or Additional Mortgage Loan Purchase Agreement as applicable, and cause such Originator or the Seller, as applicable, under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, to repurchase such Mortgage Loan from the Trust Fund at the Purchase Price within 90 days after on or prior to the date on which Determination Date following the expiration of such Originator or the Seller, as applicable, was notified period (subject to Section 2.03(d)) of such missing document, defect or breach, if and to the extent that such Originator or the Seller, as applicable, is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so). The Purchase Price for the repurchased Mortgage Loan shall be deposited in the Distribution Collection Account, and the Trustee, upon receipt of written notice from the Servicer of such deposit, shall release or cause to the Custodian to release to such related Originator or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such Originator or the Seller, as the case may be, any Mortgage Loan released pursuant hereto, hereto and the Trustee shall have no further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement Originator or the Letter AgreementSeller, as applicable, the related Originator, the Seller or the Depositor, as applicablecase may be, may cause such Mortgage Loan to be removed from the Trust Fund (in which case it shall become a Deleted Defective Mortgage Loan) and substitute one or more Qualified Eligible Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c). With respect to the representations and warranties set forth in the applicable Originator Mortgage Loan Purchase Agreement, the Mortgage Loan Purchase Agreement or the Additional Mortgage Loan Purchase Agreement that are made to the best of the related Originator's or the Seller's knowledge, as applicable, or as to which such Originator or the Seller, as the case may be, has no knowledge, if it is discovered by the Depositor, the Servicer, the NIMS Insurer or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, Prepayment Charge or the interest therein of the Certificateholders then, notwithstanding such Originator's or the Seller's lack of knowledge with respect to the substance of such representation and warranty being inaccurate at the time the representation or warranty was made, such inaccuracy shall be deemed a breach of the applicable representation or warranty. It is understood and agreed that the obligation representations and warranties set forth in the applicable Originator Mortgage Loan Purchase Agreement, the Mortgage Loan Purchase Agreement or Additional Mortgage Loan Purchase Agreement shall survive delivery of the Mortgage Files to the Trustee and the Closing Date and shall inure to the benefit of the Certificateholders notwithstanding any restrictive or qualified endorsement or assignment. It is understood and agreed that the obligations of the Originators and the Seller set forth in this Section 2.03(a) to cure, substitute for or repurchase a Mortgage Loan pursuant to the related OriginatorOriginator Mortgage Loan Purchase Agreement, the Seller Mortgage Loan Purchase Agreement or the DepositorAdditional Mortgage Loan Purchase Agreement, as applicable, and to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall pay the Reimbursement Amount constitute the sole remedy respecting such omission, defect or breach remedies available to the Certificateholders and to the Trustee on their behalf respecting a breach of the Certificateholdersrepresentations and warranties contained in the Originator Mortgage Loan Purchase Agreement, Mortgage Loan Purchase Agreement and Additional Mortgage Loan Purchase Agreement. The representations and warranties of the applicable Originator with respect to the Mortgage Loans in the respective Originator Mortgage Loan Purchase Agreement, which have been assigned to the Trustee hereunder, were made as of the dates specified in the applicable Originator Mortgage Loan Purchase Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Originator under the respective Originator Mortgage Loan Purchase Agreement and (ii) a representation or warranty of the Seller under the Mortgage Loan Purchase Agreement or Additional Mortgage Loan Purchase Agreement (other than Seller's representations with respect to predatory and abusive lending laws in Section 3.01(k) and 3.01(s) of the Mortgage Loan Purchase Agreement), the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's right to enforce the obligations of the applicable Originator under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans (except as otherwise set forth in this paragraph) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the applicable Originator in the respective Originator Mortgage Loan Purchase Agreement, without regard to whether such Originator fulfills its contractual obligations in respect of such representation or warranty. In addition, to the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (x) the Option One Mortgage Corporation's representation with respect to predatory and abusive lending laws in Section 3.03(i) or 3.03(ddd) of the Option One Sale Agreement or Ownit Mortgage's representations and warranties set forth in clauses (g), (tt), (uu), (vv) or (nnn) of Section 9.02 of the Ownit Sale Agreement and (y) the Seller's representation with respect to predatory and abusive lending laws in Section 3.01(k) or 3.01(s) of the Mortgage Loan Purchase Agreement, such Originator shall be obligated to pay the Reimbursement Amount relating to such Mortgage Loan, and, to the extent such Originator fails to do so, the Trustee shall be entitled to enforce the Seller's obligation to pay such Reimbursement Amount. In any event, the Reimbursement Amount shall be delivered to the Servicer for deposit into the Collection Account within 10 days from the date the Seller was notified by the Trustee of the Reimbursement Amount.
(ib) As promptly as practicable (and no later than Within 90 days) after days of the earlier of discovery by the related Servicer or receipt of notice by the related Servicer of the breach of any representation, warranty or covenant of such the Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(c) Any substitution of Qualified Eligible Substitute Mortgage Loans for Deleted Defective Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which last Business Day that is within two years after the Closing Date for the Trust FundDate. As to any Deleted Defective Mortgage Loan for which an Originator, Originator or the Seller or the Depositor substitutes a Qualified an Eligible Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, delivering to the Custodian on behalf of the Trustee, Trustee for such Qualified Eligible Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Eligible Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee or the Custodian shall acknowledge receipt for such Qualified Eligible Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, shall review such documents as specified in Section 2.02 and deliver to the Trustee, the Depositor Servicer and the related ServicerNIMS Insurer, with respect to such Qualified Eligible Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee or the Custodian shall deliver to the Depositor Servicer and the related Servicer NIMS Insurer a certification substantially in the form of Exhibit C-2 F-2 hereto with respect to such Qualified Eligible Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Eligible Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund and will be retained by the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on collections and recoveries in respect of such Deleted Defective Mortgage Loan on or before the Due Date in the month Collection Period or Prepayment Period, as applicable, preceding the date of substitution, substitution and the related OriginatorDepositor, the Seller an Originator or the DepositorSeller, as the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Defective Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the applicable Mortgage Loan Schedule to reflect the removal of such Deleted Defective Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Eligible Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the TrusteeTrustee and the NIMS Insurer. Upon such substitution, such Qualified Eligible Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and, in the case of a substitution effected by an Originator or the Seller, the applicable Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement or Additional Mortgage Loan Purchase Agreement, as the case may be, including, in the case of a substitution effected by an Originator, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by such Originator or the Seller, all applicable representations and warranties thereof included in the Letter such Originator Mortgage Loan Purchase Agreement, in each Mortgage Loan Purchase Agreement or Additional Mortgage Loan Purchase Agreement, as the case may be, as of the date of substitution. For any month in which an Originator, Originator or the Seller or the Depositor substitutes one or more Qualified Eligible Substitute Mortgage Loans for one or more Deleted Defective Mortgage Loans, the related Servicer will determine the amount (the "Substitution Shortfall Adjustment Amount"), if any, by which the aggregate Purchase Price of all such Deleted Defective Mortgage Loans exceeds the aggregate ofaggregate, as to each such Qualified Eligible Substitute Mortgage Loan, of the Stated Principal Balance principal balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance principal balance at the applicable Net Mortgage Interest Rate, plus all outstanding P&I Advances and Servicing Advances. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller Originator or the DepositorSeller, as the case may be, will deliver or cause to be delivered to the applicable Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall Adjustment Amount, if any, and the Trustee, upon receipt of the related Qualified Eligible Substitute Mortgage Loan or Loans and certification notice by the applicable Servicer of such deposit, shall release to the related Originator, the Depositor such Originator or the Seller, as the case may beapplicable, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor such Originator or the Seller, as the case may be, shall deliver to it and as shall be necessary to vest therein any Deleted Defective Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor such Originator or the Seller, as the case may beapplicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereunderTrust Fund, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1860F(a)(l) of the Code or on "contributions after the startup date" under Section 860G(d)(1860G(d)(l) of the Code, or (b) any REMIC 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.
(d) Upon discovery by the Depositoran Originator, the Seller, a the Servicer, the NIMS Insurer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the related Originator, the Seller such Originator or the DepositorSeller, as the case may be applicable, shall repurchase or, subject to the limitations set forth in Section 2.03(c), substitute one or more Qualified Eligible Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall In addition, upon discovery that a Mortgage Loan is defective in a manner that would cause such repurchase or substitution it to be made by (i) a "defective obligation" within the related Originatormeaning of Treasury Regulations relating to REMICs, if the affected Mortgage Loan's status as a non-qualified mortgage is such Originator or results from a breach of any representation, warranty or covenant made by the related Originator under the applicable Mortgage Loan Purchase Agreement, (ii) the Seller, if as the affected Mortgage Loan's status as a non-qualified mortgage is case may be, shall cure the defect or results from a breach of any representation, warranty make the required purchase or covenant made by substitution no later than 90 days after the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty discovery of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any representation or warrantydefect. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee shall reconvey to the related Originator, the Seller such Originator or the DepositorSeller, as the case may beapplicable, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
(e) If a Mortgagor is forty-five (45) days or more delinquent with respect to a Mortgage Loan's first Monthly Payment that was due the Seller after its initial purchase under the Option One Sale Agreement, the Servicer, at the Seller's option, shall repurchase such Mortgage Loan at the purchase price set forth in the Option One Sale Agreement plus accrued and unpaid interest thereon from the date to which interest was last paid through the last day of the month in which such repurchase takes place at the applicable Mortgage Loan Remittance Rate (as such term is defined in the Option One Sale Agreement); provided, however, the Servicer's obligation to repurchase any such Mortgage Loan pursuant to this paragraph shall expire 150 days following the related Closing Date (as such term is defined in the Option One Sale Agreement)."
Appears in 1 contract
Sources: Pooling and Servicing Agreement (ABFC 2006-Opt1 Trust)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller Originator or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, the a Mortgage File or that any document in a Mortgage File is materially inconsistent with the related Mortgage Loan Schedule or of the breach by any the Originator or the Seller of any representation, representation or warranty or covenant under each the Originator Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, Mortgage Loan Purchase Agreement in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan Loan, Prepayment Charge or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee shall promptly notify the Seller and the related Servicer of such defect, missing document or breach and cause such Originator or Seller, as applicable, to deliver such missing document or cure such defect or breach within 90 days from the date the Originator or Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may be, and the Servicer of such defect, missing document or breach and request that, in the case of a defective or missing document, the Seller cure such defect or deliver such missing document within 120 days from the date the Seller was notified of such missing document or defect or, in the case of a beach of a representation or warranty, request that the Originator or the Seller, as applicable, cure such breach within 90 days from the date the Originator or the Seller, as the case may be, was notified of such breach. If the Seller does not deliver such missing document or cure such defect or if the Originator or the Seller, as applicable, does not cure such breach in all material respects during such period, the Trustee shall enforce the obligations of such Originator's or the Seller's obligation, as the case may be, under the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as applicable, and cause the Originator or the Seller, as applicable, under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, to repurchase such Mortgage Loan from the Trust Fund at the Purchase Price within 90 days after on or prior to the date on which Determination Date following the expiration of such Originator or the Seller, as applicable, was notified period (subject to Section 2.03(d)) of such missing document, defect or breach, if and to the extent that such Originator or the Seller, as applicable, is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so). The Purchase Price for the repurchased Mortgage Loan shall be deposited in the Distribution Collection Account, and the Trustee, upon receipt of written notice from the Servicer of such deposit, shall release or cause to the Custodian to release to such Originator or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such the Originator or the Seller, as the case may be, any Mortgage Loan released pursuant hereto, hereto and the Trustee shall have no further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement Originator or the Letter AgreementSeller, as applicable, the related Originator, the Seller or the Depositor, as applicablecase may be, may cause such Mortgage Loan to be removed from the Trust Fund (in which case it shall become a Deleted Defective Mortgage Loan) and substitute one or more Qualified Eligible Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c). In addition to the foregoing, if the Purchase Price for a repurchased Mortgage Loan does not fully compensate the Trust for any costs or damages incurred by the Trust in connection with a breach of the Originator's representations with respect to predatory or abusive lending laws set forth in Section 3.02(i) of the Originator Mortgage Loan Purchase Agreement with respect to such repurchased Mortgage Loan, the Seller shall be required to reimburse the Trust pursuant to the Mortgage Loan Purchase Agreement the amount necessary to fully compensate the Trust for such costs or damages (the "Reimbursement Amount"). The Reimbursement Amount shall be delivered to the Servicer for deposit into the Collection Account within 10 days from the date the Seller was notified by the Trustee of the Reimbursement Amount. It is understood and agreed that the obligation representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement shall survive delivery of the related Originator, Mortgage Files to the Trustee and shall inure to the benefit of the Certificateholders notwithstanding any restrictive or qualified endorsement or assignment. It is understood and agreed that the obligations of the Originator and the Seller set forth in this Section 2.03(a) to cure, substitute for or the Depositor, as applicable, to cure or to repurchase (or to substitute for) any a Mortgage Loan as pursuant to which a document is missing, a material defect in a constituent document exists or as the Mortgage Loan Purchase Agreement and to which such a breach has occurred and is continuing shall pay the Reimbursement Amount constitute the sole remedy respecting such omission, defect or breach remedies available to the Certificateholders and to the Trustee on their behalf respecting a breach of the Certificateholdersrepresentations and warranties contained in the Mortgage Loan Purchase Agreement. The representations and warranties of the Originator with respect to the Mortgage Loans in the Originator Mortgage Loan Purchase Agreement, which have been assigned to the Trustee hereunder, were made as of the dates specified in the Originator Mortgage Loan Purchase Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Originator under the Originator Mortgage Loan Purchase Agreement and (ii) a representation or warranty of the Seller under the Mortgage Loan Purchase Agreement (other than Seller's representations with respect to predatory and abusive lending laws and "high cost" loans in Sections 3.01(i) and (ii) of the Mortgage Loan Purchase Agreement), the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's right to enforce the obligations of the Originator under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans (except as otherwise set forth in this paragraph) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Originator in the Originator Mortgage Loan Purchase Agreement, without regard to whether the Originator fulfills its contractual obligations in respect of such representation or warranty. In addition, to the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (x) the Originator's representation with respect to predatory and abusive lending laws in Section 3.02(i) of the Originator Mortgage Loan Purchase Agreement and (y) the Seller's representation with respect to predatory and abusive lending laws in Section 3.01(i) of the Mortgage Loan Purchase Agreement, the Trustee shall be entitled to enforce the Seller's obligation to pay any Reimbursement Amount to the extent the Originator fails to do so.
(ib) As promptly as practicable (and no later than Within 90 days) after days of the earlier of discovery by the related Servicer or receipt of notice by the related Servicer of the breach of any representation, warranty or covenant of such the Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(c) Any substitution of Qualified Eligible Substitute Mortgage Loans for Deleted Defective Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which last Business Day that is within two years after the Closing Date for the Trust FundDate. As to any Deleted Defective Mortgage Loan for which an Originator, the Originator or the Seller or the Depositor substitutes a Qualified an Eligible Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, delivering to the Custodian on behalf of the Trustee, Trustee for such Qualified Eligible Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Eligible Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee or the Custodian shall acknowledge receipt for such Qualified Eligible Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, shall review such documents as specified in Section 2.02 and deliver to the Trustee, the Depositor and the related Servicer, with respect to such Qualified Eligible Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee or the Custodian shall deliver to the Depositor and Servicer the related Servicer a certification Final Certification substantially in the form of Exhibit C-2 F-2 hereto with respect to such Qualified Eligible Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Eligible Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund and will be retained by the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on collections and recoveries in respect of such Deleted Defective Mortgage Loan on or before the Due Date in the month Collection Period or Prepayment Period, as applicable, preceding the date of substitution, substitution and the related OriginatorDepositor, the Seller Originator or the DepositorSeller, as the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Defective Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the applicable Mortgage Loan Schedule to reflect the removal of such Deleted Defective Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Eligible Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitution, such Qualified Eligible Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and, in the case of a substitution effected by the Originator or the Seller, the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as the case may be, including, in the case of a substitution effected by an Originator, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by Originator or the Seller, all applicable representations and warranties thereof included in the Letter Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, in each as the case may be, as of the date of substitution. For any month in which an Originator, the Originator or the Seller or the Depositor substitutes one or more Qualified Eligible Substitute Mortgage Loans for one or more Deleted Defective Mortgage Loans, the related Servicer will determine the amount (the "Substitution Shortfall Adjustment Amount"), if any, by which the aggregate Purchase Price of all such Deleted Defective Mortgage Loans exceeds the aggregate ofaggregate, as to each such Qualified Eligible Substitute Mortgage Loan, of the Stated Principal Balance principal balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance principal balance at the applicable Net Mortgage Interest Rate, plus all outstanding P&I Advances and Servicing Advances. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller Originator or the DepositorSeller, as the case may be, will deliver or cause to be delivered to the applicable Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall Adjustment Amount, if any, and the Trustee, upon receipt of the related Qualified Eligible Substitute Mortgage Loan or Loans and certification notice by the applicable Servicer of such deposit, shall release to the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor Originator or the Seller, as the case may be, shall deliver to it and as shall be necessary to vest therein any Deleted Defective Mortgage Loan released pursuant hereto. In addition, in connection with the related substitution of one or more Eligible Substitute Mortgage Loans for one or more Defective Mortgage Loans, in the event the Trust incurs costs or damages arising in connection with a breach of the Originator's representations with respect to predatory or abusive lending laws set forth in Section 3.02(i) of the Originator Mortgage Loan Purchase Agreement, the Depositor Seller shall be required to reimburse the Trust for the Reimbursement Amount pursuant to the Mortgage Loan Purchase Agreement. In addition, the Originator or the Seller, as the case may beapplicable, shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereunderTrust Fund, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1860F(a)(l) of the Code or on "contributions after the startup date" under Section 860G(d)(1860G(d)(l) of the Code, or (b) any REMIC 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.
(d) Upon discovery by the DepositorOriginator, the Seller, a Servicer, the Servicer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the related Originator, the Seller Originator or the DepositorSeller, as the case may be applicable, shall repurchase or, subject to the limitations set forth in Section 2.03(c), substitute one or more Qualified Eligible Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall In addition, upon discovery that a Mortgage Loan is defective in a manner that would cause such repurchase or substitution it to be made by (i) a "defective obligation" within the related Originatormeaning of Treasury regulations relating to REMICs, if the affected Mortgage Loan's status as a non-qualified mortgage is Originator or results from a breach of any representation, warranty or covenant made by the related Originator under the applicable Mortgage Loan Purchase Agreement, (ii) the Seller, if as the affected Mortgage Loan's status as a non-qualified mortgage is case may be, shall cure the defect or results from a breach of any representation, warranty make the required purchase or covenant made by substitution no later than 90 days after the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty discovery of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any representation or warrantydefect. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee shall reconvey to the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Abfc Asset-Backed Certificates Series 2003-Wmc1)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller Originator or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, a Mortgage File or that any document in a Mortgage File is materially inconsistent with the Mortgage File Loan Schedule or of the breach by any the Originator or the Seller of any representation, representation or warranty or covenant under each the Originator Mortgage Loan Purchase Agreement or the Letter Mortgage Loan Purchase Agreement, as applicable, in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan Loan, Prepayment Charge or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee shall promptly notify the Seller and the related Servicer of such defect, missing document or breach and cause such Originator or Seller, as applicable, to deliver such missing document or cure such defect or breach within 90 days from the date the Originator or Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may be, the Servicer and the NIMS Insurer of such defect, missing document or breach and request that, in the case of a defective or missing document, the Seller cure such defect or deliver such missing document within 120 days from the date the Seller was notified of such missing document or defect or, in the case of a beach of a representation or warranty, request the Originator or the Seller, as applicable, cure such breach within 90 days from the date the Originator or the Seller, as the case may be, was notified of such breach. If the Seller does not deliver such missing document or cure such defect or if the Originator or the Seller, as applicable, does not cure such breach in all material respects during such period, the Trustee shall enforce the obligations of such Originator's or the Seller's obligation, as the case may be, under the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as applicable, and cause the Originator or the Seller, as applicable, under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, to repurchase such Mortgage Loan from the Trust Fund at the Purchase Price within 90 days after on or prior to the date on which Determination Date following the expiration of such Originator or the Seller, as applicable, was notified period (subject to Section 2.03(d)) of such missing document, defect or breach, if and to the extent that such Originator or the Seller, as applicable, is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so). The Purchase Price for the repurchased Mortgage Loan shall be deposited in the Distribution Trust Collection Account, and the Trustee, upon receipt of written notice from the Servicer of such deposit, shall release or cause to the Custodian to release to such Originator or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such the Originator or the Seller, as the case may be, any Mortgage Loan released pursuant hereto, hereto and the Trustee shall have no further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement Originator or the Letter AgreementSeller, as applicable, the related Originator, the Seller or the Depositor, as applicablecase may be, may cause such Mortgage Loan to be removed from the Trust Fund (in which case it shall become a Deleted Defective Mortgage Loan) and substitute one or more Qualified Eligible Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c); provided, however, the Originator or the Seller, as applicable, may not substitute an Eligible Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory or abusive lending law. With respect to the representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement that are made to the best of the Originator's or the Seller's knowledge, as applicable, or as to which the Originator or the Seller, as the case may be, has no knowledge, if it is discovered by the Depositor, the Servicer, the NIMS Insurer or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, Prepayment Charge or the interest therein of the Certificateholders then, notwithstanding the Originator's or the Seller's lack of knowledge with respect to the substance of such representation and warranty being inaccurate at the time the representation or warranty was made, such inaccuracy shall be deemed a breach of the applicable representation or warranty. It is understood and agreed that the obligation representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement shall survive delivery of the related Originator, Mortgage Files to the Trustee and the Closing Date and shall inure to the benefit of the Certificateholders notwithstanding any restrictive or qualified endorsement or assignment. It is understood and agreed that the obligations of the Originator and the Seller set forth in this Section 2.03(a) to cure, substitute for or repurchase a Mortgage Loan pursuant to the Originator Mortgage Loan Purchase Agreement or the DepositorMortgage Loan Purchase Agreement, as applicable, and to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall pay the Reimbursement Amount constitute the sole remedy respecting such omission, defect or breach remedies available to the Certificateholders and to the Trustee on their behalf respecting a breach of the Certificateholdersrepresentations and warranties contained in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement. The representations and warranties of the Originator with respect to the Mortgage Loans in the Originator Mortgage Loan Purchase Agreement, which have been assigned to the Trustee hereunder, were made as of the dates specified in the Originator Mortgage Loan Purchase Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Originator under the Originator Mortgage Loan Purchase Agreement and (ii) a representation or warranty of the Seller under the Mortgage Loan Purchase Agreement (other than Seller's representations with respect to predatory and abusive lending laws in Sections 3.01(i), 3.01(ii) and 3.01(iii) of the Mortgage Loan Purchase Agreement), the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's right to enforce the obligations of the Originator under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans (except as otherwise set forth in this paragraph) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Originator in the Originator Mortgage Loan Purchase Agreement, without regard to whether the Originator fulfills its contractual obligations in respect of such representation or warranty. In addition, to the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (x) the Originator's representation with respect to predatory and abusive lending laws in Section 3.02(i), (tt), (uu) and (ggg) of the Originator Mortgage Loan Purchase Agreement and (y) the Seller's representation with respect to predatory and abusive lending laws in Section 3.01(i), 3.01(ii) or 3.01(iii) of the Mortgage Loan Purchase Agreement, the Originator shall be obligated to pay the Reimbursement Amount relating to such Mortgage Loan, and, to the extent the Originator fails to do so, the Trustee shall be entitled to enforce the Seller's obligation to pay such Reimbursement Amount. In any event, the Reimbursement Amount shall be delivered to the Servicer for deposit into the Trust Collection Account within ten (10) days from the date the Seller was notified by the Trustee of the Reimbursement Amount.
(ib) As promptly as practicable (and no later than Within 90 days) after days of the earlier of discovery by the related Servicer or receipt of notice by the related Servicer of the breach of any representation, warranty or covenant of such the Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(c) Any substitution of Qualified Eligible Substitute Mortgage Loans for Deleted Defective Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which last Business Day that is within two years after the Closing Date for the Trust FundDate. As to any Deleted Defective Mortgage Loan for which an Originator, the Originator or the Seller or the Depositor substitutes a Qualified an Eligible Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, delivering to the Custodian on behalf of the Trustee, Trustee for such Qualified Eligible Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Eligible Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Amount Adjustment (as described below), if any, in connection with such substitution. The Trustee or the Custodian shall acknowledge receipt for such Qualified Eligible Substitute Mortgage Loan or Loans and, within ten (10) Business Days thereafter, shall review such documents as specified in Section 2.02 and deliver to the Trustee, the Depositor Servicer and the related ServicerNIMS Insurer, with respect to such Qualified Eligible Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee or the Custodian shall deliver to the Depositor Servicer and the related Servicer NIMS Insurer a certification substantially in the form of Exhibit C-2 F-2 hereto with respect to such Qualified Eligible Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Eligible Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund and will be retained by the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on collections and recoveries in respect of such Deleted Defective Mortgage Loan on or before the Due Date in the month Collection Period or Prepayment Period, as applicable, preceding the date of substitution, substitution and the related OriginatorDepositor, the Seller Originator or the DepositorSeller, as the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Defective Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Defective Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Eligible Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee, the Servicer and the NIMS Insurer. Upon such substitution, such Qualified Eligible Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and, in the case of a substitution effected by the Originator or the Seller, the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as the case may be, including, in the case of a substitution effected by an Originator, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by Originator or the Seller, all applicable representations and warranties thereof included in the Letter Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, in each as the case may be, as of the date of substitution. For any month in which an Originator, the Originator or the Seller or the Depositor substitutes one or more Qualified Eligible Substitute Mortgage Loans for one or more Deleted Defective Mortgage Loans, the related Servicer will determine the amount (the "Substitution Shortfall AmountAdjustment"), if any, by which the aggregate Purchase Price of all such Deleted Defective Mortgage Loans exceeds the aggregate ofaggregate, as to each such Qualified Eligible Substitute Mortgage Loan, of the Stated Principal Balance principal balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance principal balance at the applicable Net Mortgage Interest Rate, plus all outstanding P&I Advances and Servicing Advances. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller Originator or the DepositorSeller, as the case may be, will deliver or cause to be delivered to the applicable Servicer for deposit in the Trust Collection Account an amount equal to the Substitution Shortfall AmountAdjustment, if any, and the Trustee, upon receipt of the related Qualified Eligible Substitute Mortgage Loan or Loans and certification notice by the applicable Servicer of such deposit, shall release to the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor Originator or the Seller, as the case may be, shall deliver to it and as shall be necessary to vest therein any Deleted Defective Mortgage Loan released pursuant hereto. In addition, in connection with the related substitution of one or more Eligible Substitute Mortgage Loans for one or more Defective Mortgage Loans, in the event the Trust incurs costs or damages arising in connection with a breach of the Originator's representations with respect to predatory or abusive lending laws set forth in Section 3.02(i), (tt), (uu) and (ggg) of the Originator Mortgage Loan Purchase Agreement, the Depositor Seller shall be required to reimburse the Trust for the Reimbursement Amount pursuant to the Mortgage Loan Purchase Agreement to the extent that the Originator fails to do so. In addition, the Originator or the Seller, as the case may beapplicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to an Adverse REMIC Event. If such Opinion of Counsel can not be imposed on any delivered, then such substitution may only be effected at such time as the required Opinion of the REMICs, created hereunder, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any REMIC hereunder to fail to qualify as a REMIC at any time that any Certificate is outstandingCounsel can be given.
(d) Upon discovery by the DepositorOriginator, the Seller, a the Servicer, the NIMS Insurer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the related Originator, the Seller Originator or the DepositorSeller, as the case may be applicable, shall repurchase or, subject to the limitations set forth in Section 2.03(c), substitute one or more Qualified Eligible Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall In addition, upon discovery that a Mortgage Loan is defective in a manner that would cause such repurchase or substitution it to be made by (i) a "defective obligation" within the related Originatormeaning of Treasury Regulations relating to REMICs, if the affected Mortgage Loan's status as a non-qualified mortgage is Originator or results from a breach of any representation, warranty or covenant made by the related Originator under the applicable Mortgage Loan Purchase Agreement, (ii) the Seller, if as the affected Mortgage Loan's status as a non-qualified mortgage is case may be, shall cure the defect or results from a breach of any representation, warranty make the required purchase or covenant made by substitution no later than 90 days after the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty discovery of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any representation or warrantydefect. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee shall reconvey to the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller or the Depositor; Payment of Prepayment Charges in the event of breach.
(a) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, the a Mortgage File or of the breach by any Originator or the Seller of any representation, warranty or covenant under each the Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, in respect of any Mortgage Loan which that materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee shall promptly notify the Seller and the related Master Servicer of such defect, missing document or breach and cause such Originator or Seller, as applicable, to request that the Seller deliver such missing document or cure such defect or breach within 90 60 days from the date the Originator or Seller, as applicable, Seller was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by , and if the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may be, Seller does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee Trustee, in accordance with Section 3.02(b), shall enforce the obligations of such Originator or the Seller, as applicable, Seller under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, to repurchase such Mortgage Loan from the Trust Fund REMIC I at the Purchase Price within 90 days after the date on which such Originator or the Seller, as applicable, Seller was notified (subject to Section 2.03(d2.03(e)) of such missing document, defect or breach, if and to the extent that such Originator or the Seller, as applicable, Seller is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so. The Purchase Price for the repurchased Mortgage Loan shall be deposited in the Distribution Account, Collection Account and the Trustee, upon receipt of written certification from the Master Servicer of such deposit, shall release or cause to the Custodian to release to such Originator or the Seller, as applicable, Seller the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such Originator or the Seller, as applicable, Seller shall furnish to it and as shall be necessary to vest in such Originator or the Seller, as the case may be, Seller any Mortgage Loan released pursuant hereto, hereto and the Trustee shall have no further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, the related Originator, the Seller or the Depositor, as applicable, may cause such Mortgage Loan to be removed from the Trust Fund REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c2.03(d). It is understood and agreed that the obligation of the related Originator, the Seller or the Depositor, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee on behalf of the Certificateholders.
(ib) As promptly as practicable (and no later than Subject to Section 2.03(e), within 90 days) after days of the earlier of discovery by the Depositor or receipt of notice by the Depositor of the breach of any representation or warranty of the Depositor set forth in Section 2.04 with respect to any Mortgage Loan, which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Depositor shall (i) cure such breach in all material respects, (ii) repurchase the Mortgage Loan from REMIC I at the Purchase Price or (iii) remove such Mortgage Loan from REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(d). If any such breach is a breach of any of the representations and warranties included in Section 2.04(a)(iv), and the Depositor is unable to cure such breach, the Depositor shall repurchase or substitute the smallest number of Mortgage Loans as shall be required to make such representation or warranty true and correct. The Purchase Price for any repurchased Mortgage Loan shall be delivered to the Master Servicer for deposit in the Collection Account, and the Trustee, upon receipt of written certification from the Master Servicer of such deposit, shall at the Depositor's direction release to the Depositor the related Mortgage File and shall execute and deliver such instruments of transfer or assignment furnished by the Depositor, in each case without recourse, as the Depositor shall furnish to it and as shall be necessary to vest in the Depositor any Mortgage Loan released pursuant hereto.
(c) Within 90 days of the earlier of discovery by the Master Servicer or receipt of notice by the related Master Servicer of the breach of any representation, warranty or covenant of such the Master Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage LoanLoan or Prepayment Charge, the related Master Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(cd) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) ), in the case of the Seller, or Section 2.03(b), in the case of the Depositor, must be effected prior to the date which is two years after the Closing Date Startup Day for the Trust Fund. REMIC I. As to any Deleted Mortgage Loan for which an Originator, the Seller or the Depositor substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller or the Depositor, as the case may be, delivering to the Custodian on behalf of the Trustee, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Amount (as described below), if any, in connection with such substitution. The Trustee or the Custodian shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, review such documents as specified in Section 2.02 and deliver to the Trustee, the Depositor and the related Master Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee or the Custodian shall deliver to the Depositor and the related Master Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund REMIC I and will be retained by the related Originator, the Seller Depositor or the DepositorSeller, as the case may be. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the related Originator, the Seller Depositor or the DepositorSeller, as the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and, in the case of a substitution effected by the Seller, the Mortgage Loan Purchase Agreement, including, in the case of a substitution effected by an Originatorthe Seller, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by the Seller, all applicable representations and warranties thereof included in the Letter Agreement, in each case as of the date of substitution. For any month in which an Originator, the Depositor or the Seller or the Depositor substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Master Servicer will determine the amount (the "Substitution Shortfall Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the Stated Scheduled Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Scheduled Principal Balance at the applicable Net Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances (including Nonrecoverable P&I Advances and Nonrecoverable Servicing Advances) related thereto. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller Depositor or the DepositorSeller, as the case may be, will deliver or cause to be delivered to the applicable Master Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall Amount, if any, and the Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification by the applicable Master Servicer of such deposit, shall release to the related Originator, the Depositor or the Seller, as the case may be, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor or the Seller, as the case may be, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor or the Seller, as the case may be, shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICsREMIC I, created hereunderREMIC II or REMIC III, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any of REMIC hereunder I, REMIC II or REMIC III to fail to qualify as a REMIC at any time that any Certificate is outstanding.
(de) Upon discovery by the Depositor, the Seller, a Servicer, the Master Servicer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the related Originator, the Seller or the Depositor, as the case may be Depositor shall repurchase or, subject to the limitations set forth in Section 2.03(c2.03(d), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall cause such Such repurchase or substitution to shall be made by (i) the related Originator, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the related Originator under the applicable Mortgage Loan Purchase Agreement, (ii) the Seller, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Seller under the Letter Mortgage Loan Purchase Agreement, or (iiiii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a), if made by the Seller, or Section 2.03(b), if made by the Depositor. The Trustee shall reconvey to the related Originator, the Seller Depositor or the DepositorSeller, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Salomon Bros Mort Sec Vii Inc Mort Pa THR Cert Ser 1998-Wfc1)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller Originators or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, the a Mortgage File or of the breach by any Originator the Originators or the Seller of any representation, representation or warranty or covenant under each the related Originator Mortgage Loan Purchase Agreement or the Letter Mortgage Loan Purchase Agreement, as applicable, in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan Loan, Prepayment Charge or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee shall promptly notify the Seller and the related Servicer of such defect, missing document or breach and cause such Originator or Seller, as applicable, to deliver such missing document or cure such defect or breach within 90 days from the date the Originator or Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may be, the Servicer and the NIMS Insurer of such defect, missing document or breach and request that, in the case of a defective or missing document, the Seller cure such defect or deliver such missing document within 120 days from the date the Seller was notified of such missing document or defect or, in the case of a beach of a representation or warranty, request the related Originator or the Seller, as applicable, cure such breach within 90 days from the date the applicable Originator or the Seller, as the case may be, was notified of such breach. If the Seller does not deliver such missing document or cure such defect or if the related Originator or the Seller, as applicable, does not cure such breach in all material respects during such period, the Trustee shall enforce such Originator's or the obligations of Seller's obligation, as the case may be, under the applicable Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as applicable, and cause such Originator or the Seller, as applicable, under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, to repurchase such Mortgage Loan from the Trust Fund at the Purchase Price within 90 days after on or prior to the date on which Determination Date following the expiration of such Originator or the Seller, as applicable, was notified period (subject to Section 2.03(d)) of such missing document, defect or breach, if and to the extent that such Originator or the Seller, as applicable, is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so). The Purchase Price for the repurchased Mortgage Loan shall be deposited in the Distribution Collection Account, and the Trustee, upon receipt of written notice from the Servicer of such deposit, shall release or cause to the Custodian to release to such related Originator or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such Originator or the Seller, as the case may be, any Mortgage Loan released pursuant hereto, hereto and the Trustee shall have no further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement Originator or the Letter AgreementSeller, as applicable, the related Originator, the Seller or the Depositor, as applicablecase may be, may cause such Mortgage Loan to be removed from the Trust Fund (in which case it shall become a Deleted Defective Mortgage Loan) and substitute one or more Qualified Eligible Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c). With respect to the representations and warranties set forth in the Originator Mortgage Loan Purchase Agreements and the Mortgage Loan Purchase Agreement that are made to the best of the related Originator's or the Seller's knowledge, as applicable, or as to which such Originator or the Seller, as the case may be, has no knowledge, if it is discovered by the Depositor, the Servicer, the NIMS Insurer or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, Prepayment Charge or the interest therein of the Certificateholders then, notwithstanding such Originator's or the Seller's lack of knowledge with respect to the substance of such representation and warranty being inaccurate at the time the representation or warranty was made, such inaccuracy shall be deemed a breach of the applicable representation or warranty. It is understood and agreed that the obligation representations and warranties set forth in each Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement shall survive delivery of the related Originator, Mortgage Files to the Trustee and the Closing Date and shall inure to the benefit of the Certificateholders notwithstanding any restrictive or qualified endorsement or assignment. It is understood and agreed that the obligations of the Originators and the Seller set forth in this Section 2.03(a) to cure, substitute for or repurchase a Mortgage Loan pursuant to the related Originator Mortgage Loan Purchase Agreement or the DepositorMortgage Loan Purchase Agreement, as applicable, and to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall pay the Reimbursement Amount constitute the sole remedy respecting such omission, defect or breach remedies available to the Certificateholders and to the Trustee on their behalf respecting a breach of the Certificateholdersrepresentations and warranties contained in each Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement. The representations and warranties of WMC Mortgage with respect to the Mortgage Loans in the WMC Sale Agreement, which have been assigned to the Trustee hereunder, were made as of June 27, 2005 and July 6, 2005. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of WMC Mortgage under the WMC Sale Agreement and (ii) a representation or warranty of the Seller under the Mortgage Loan Purchase Agreement with respect to the Mortgage Loans purchased from WMC Mortgage under the WMC Sale Agreement (other than Seller's representations with respect to predatory and abusive lending laws in Section 3.01(k) and 3.01(s) of the Mortgage Loan Purchase Agreement), the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's right to enforce the obligations of WMC Mortgage under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to such Mortgage Loans (except as otherwise set forth in this paragraph) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by WMC Mortgage in the WMC Sale Agreement, without regard to whether WMC Mortgage fulfills its contractual obligations in respect of such representation or warranty. In addition, to the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (x) WMC Mortgage's representation with respect to predatory and abusive lending laws in clauses (i), (ddd) or (ooo) of Section 3.02 of the WMC Sale Agreement and (y) the Seller's representation with respect to predatory and abusive lending laws in Section 3.01(k) or 3.01(s) of the Mortgage Loan Purchase Agreement, WMC Mortgage shall be obligated to pay the Reimbursement Amount relating to such Mortgage Loan, and, to the extent WMC Mortgage fails to do so, the Trustee shall be entitled to enforce the Seller's obligation to pay such Reimbursement Amount. The representations and warranties of Ownit Mortgage with respect to the Mortgage Loans in the Ownit Sale Agreement, which have been assigned to the Trustee hereunder, were made as of March 9, 2005 and March 17, 2005. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of Ownit Mortgage under the Ownit Sale Agreement and (ii) a representation or warranty of the Seller under the Mortgage Loan Purchase Agreement, Ownit Mortgage shall be obligated to cure such breach or repurchase the affected Mortgage Loan pursuant to the terms of the Ownit Sale Agreement and, to the extent Ownit Mortgage fails to do so, the Trustee shall be entitled to enforce the Seller's obligation to cure such breach or repurchase the affected Mortgage Loan under the Mortgage Loan Purchase Agreement. In addition, to the extent Ownit Mortgage fails to pay any Reimbursement Amount, the Trustee shall be entitled to enforce the Seller's obligation to pay such Reimbursement Amount. In any event, the Reimbursement Amount shall be delivered to the Servicer for deposit into the Collection Account within 10 days from the date the Seller was notified by the Trustee of the Reimbursement Amount.
(ib) As promptly as practicable (and no later than Within 90 days) after days of the earlier of discovery by the related Servicer or receipt of notice by the related Servicer of the breach of any representation, warranty or covenant of such the Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(c) Any substitution of Qualified Eligible Substitute Mortgage Loans for Deleted Defective Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which last Business Day that is within two years after the Closing Date for the Trust FundDate. As to any Deleted Defective Mortgage Loan for which an Originator, Originator or the Seller or the Depositor substitutes a Qualified an Eligible Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, delivering to the Custodian on behalf of the Trustee, Trustee for such Qualified Eligible Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Eligible Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee or the Custodian shall acknowledge receipt for such Qualified Eligible Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, shall review such documents as specified in Section 2.02 and deliver to the Trustee, the Depositor Servicer and the related ServicerNIMS Insurer, with respect to such Qualified Eligible Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee or the Custodian shall deliver to the Depositor Servicer and the related Servicer NIMS Insurer a certification substantially in the form of Exhibit C-2 F-2 hereto with respect to such Qualified Eligible Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Eligible Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund and will be retained by the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on collections and recoveries in respect of such Deleted Defective Mortgage Loan on or before the Due Date in the month Collection Period or Prepayment Period, as applicable, preceding the date of substitution, substitution and the related OriginatorDepositor, the Seller an Originator or the DepositorSeller, as the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Defective Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Defective Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Eligible Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the TrusteeTrustee and the NIMS Insurer. Upon such substitution, such Qualified Eligible Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and, in the case of a substitution effected by an Originator or the Seller, the applicable Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as the case may be, including, in the case of a substitution effected by an Originator, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by such Originator or the Seller, all applicable representations and warranties thereof included in such Originator Mortgage Loan Purchase Agreement and, in the Letter case of a substitution made by Ownit Mortgage or the Seller, and the Mortgage Loan Purchase Agreement, in each case as of the date of substitution. For any month in which an Originator, Originator or the Seller or the Depositor substitutes one or more Qualified Eligible Substitute Mortgage Loans for one or more Deleted Defective Mortgage Loans, the related Servicer will determine the amount (the "Substitution Shortfall Adjustment Amount"), if any, by which the aggregate Purchase Price of all such Deleted Defective Mortgage Loans exceeds the aggregate ofaggregate, as to each such Qualified Eligible Substitute Mortgage Loan, of the Stated Principal Balance principal balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance principal balance at the applicable Net Mortgage Interest Rate, plus all outstanding P&I Advances and Servicing Advances. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller Originator or the DepositorSeller, as the case may be, will deliver or cause to be delivered to the applicable Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall Adjustment Amount, if any, and the Trustee, upon receipt of the related Qualified Eligible Substitute Mortgage Loan or Loans and certification notice by the applicable Servicer of such deposit, shall release to the related Originator, the Depositor such Originator or the Seller, as the case may beapplicable, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor such Originator or the Seller, as the case may be, shall deliver to it and as shall be necessary to vest therein any Deleted Defective Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor such Originator or the Seller, as the case may beapplicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereunderTrust Fund, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1860F(a)(l) of the Code or on "contributions after the startup date" under Section 860G(d)(1860G(d)(l) of the Code, or (b) any REMIC 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.
(d) Upon discovery by the Depositoran Originator, the Seller, a the Servicer, the NIMS Insurer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the related Originator, the Seller such Originator or the DepositorSeller, as the case may be applicable, shall repurchase or, subject to the limitations set forth in Section 2.03(c), substitute one or more Qualified Eligible Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall In addition, upon discovery that a Mortgage Loan is defective in a manner that would cause such repurchase or substitution it to be made by (i) a "defective obligation" within the related Originatormeaning of Treasury Regulations relating to REMICs, if the affected Mortgage Loan's status as a non-qualified mortgage is such Originator or results from a breach of any representation, warranty or covenant made by the related Originator under the applicable Mortgage Loan Purchase Agreement, (ii) the Seller, if as the affected Mortgage Loan's status as a non-qualified mortgage is case may be, shall cure the defect or results from a breach of any representation, warranty make the required purchase or covenant made by substitution no later than 90 days after the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty discovery of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any representation or warrantydefect. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee shall reconvey to the related Originator, the Seller such Originator or the DepositorSeller, as the case may beapplicable, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (ABFC Asset-Backed Certificates, Series 2005-He2)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller Originator or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, the a Mortgage File or of the breach by any the Originator or the Seller of any representation, warranty or covenant under each the Mortgage Loan Purchase Agreement (including any representation, warranty or covenant regarding the Letter Agreement, as applicable, Prepayment Charge Schedule) in respect of any Mortgage Loan which that materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee shall promptly notify the Originator, the Seller and the related Servicer of such defect, missing document or breach and cause such request that the Originator or the Seller, as applicable, to deliver such missing document or cure such defect or breach within 90 days from the date the Originator or the Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by , and if the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may beapplicable, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee Servicer, to the extent it is not the Originator, the Seller or an Affiliate of the Seller, and otherwise the Trustee, in accordance with Section 3.02(b), shall enforce the obligations of such the Originator or the Seller, as applicable, under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, to repurchase such Mortgage Loan from the Trust Fund REMIC I at the Purchase Price within 90 days after the date on which such the Originator or the Seller, as applicable, was notified (subject to Section 2.03(d2.03(c)) of such missing document, defect or breach, if and to the extent that such the Originator or the Seller, as applicable, is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so. The Purchase Price for the repurchased Mortgage Loan shall be deposited remitted to the Servicer for deposit in the Distribution Account, Collection Account and the Trustee (or the Custodian on behalf of the Trustee), upon receipt of written certification from the Servicer of such deposit, shall release or cause to the Custodian to release to such Originator or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such the Originator or the Seller, as the case may beapplicable, any Mortgage Loan released pursuant hereto, and the . The Trustee shall not have no any further responsibility with regard to such Mortgage FileFile (it being understood that neither the Trustee nor the Custodian shall have any responsibility for determining the sufficiency of such assignment for its intended purpose). In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement Agreement, the Originator or the Letter Agreement, as applicable, the related Originator, the Seller or the DepositorSeller, as applicable, may cause such Mortgage Loan to be removed from the Trust Fund REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c2.03(b); provided, however, the Originator may not substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory or abusive lending law. It is understood and agreed that the obligation of the related Originator, the Seller Originator or the DepositorSeller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee on behalf of and the Certificateholders.
(i) As promptly as practicable (and no later than 90 days) after the earlier of discovery by the related Servicer or receipt of notice by the related Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(cb) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which is two years after the Closing Date Startup Day for the Trust Fund. REMIC I. As to any Deleted Mortgage Loan for which an Originator, the Seller Originator or the Depositor Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, delivering to the Custodian Custodian, on behalf of the Trustee, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' ’ Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Adjustment Amount (as described below), if any, in connection with such substitution. The In accordance with the Custodial Agreement, the Trustee or shall cause the Custodian shall to acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, review such documents as specified in Section 2.02 and cause the Custodian to deliver to the TrusteeDepositor, the Depositor Trustee and the related Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, in accordance with the Custodial Agreement, the Trustee or shall cause the Custodian shall to deliver to the Depositor Depositor, the Trustee and the related Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund REMIC I and will be retained by the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the TrusteeTrustee and the Custodian. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Mortgage Loan Purchase Agreement, including, in the case of a substitution effected by an Originator, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by the Seller, all applicable representations and warranties thereof included in the Letter Agreement, in each case as of the date of substitution. For any month in which an Originator, the Seller Originator or the Depositor Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Servicer will determine the amount (the "“Substitution Shortfall Adjustment Amount"”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the Stated Principal Balance thereof as of the date of substitution, together with one month's ’s interest on such Stated Principal Balance at the applicable Net Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, will deliver or cause to be delivered to the applicable Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall Adjustment Amount, if any, and upon receipt by the Custodian, on behalf of the Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification by the applicable Servicer to the Trustee of such deposit, the Trustee shall cause the Custodian to release as required by the Custodial Agreement to the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereunderTrust REMIC, including without limitation, any federal tax imposed on "“prohibited transactions" ” under Section 860F(a)(1) of the Code or on "“contributions after the startup date" ” under Section 860G(d)(1) of the Code, or (b) any Trust REMIC hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding.
(dc) Upon discovery by the Depositor, the Originator, the Seller, a Servicer, the Servicer or the Trustee that any Mortgage Loan does not constitute a "“qualified mortgage" ” within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the related Originator, the Seller or the Depositor, as the case may be Depositor shall repurchase or, subject to the limitations set forth in Section 2.03(c2.03(b), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall cause such Such repurchase or substitution to shall be made by (i) the related OriginatorOriginator or the Seller, as the case may be, if the affected Mortgage Loan's ’s status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the related Originator or the Seller, as the case may be, under the applicable Mortgage Loan Purchase Agreement, or (ii) the Seller, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's ’s status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee (or the Custodian on behalf of the Trustee) shall reconvey to the related OriginatorDepositor, the Seller Originator or the DepositorSeller, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust, Series 2005-Opt3)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller Responsible Party or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, the a Mortgage File or of the breach by any Originator the Responsible Party or the Seller of any representation, warranty or covenant under each the Mortgage Loan Purchase Agreement (including any representation, warranty or covenant regarding the Letter Agreement, as applicable, Prepayment Charge Schedule) in respect of any Mortgage Loan which that materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee shall promptly notify the Responsible Party, the Seller and the related Servicer of such defect, missing document or breach and cause such Originator request that the Responsible Party or the Seller, as applicable, to deliver such missing document or cure such defect or breach within 90 days from the date the Originator Responsible Party or the Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by , and if the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator Responsible Party or the Seller, as the case may beapplicable, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee upon receipt of written notice of such failure shall enforce the obligations of such Originator the Responsible Party or the Seller, as applicable, under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, to repurchase such Mortgage Loan from the Trust Fund REMIC I at the Purchase Price within 90 days after the date on which such Originator the Responsible Party or the Seller, as applicable, was notified (subject to Section 2.03(d2.03(c)) of such missing document, defect or breach, if and to the extent that such Originator the Responsible Party or the Seller, as applicable, is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so. The Purchase Price for the repurchased Mortgage Loan shall be deposited remitted to the Servicer for deposit in the Distribution Account, Collection Account and the Trustee (or the Custodian on behalf of the Trustee), upon receipt of written certification from the Servicer of such deposit, shall release or cause to the Custodian to release to such Originator Responsible Party or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such Originator the Responsible Party or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such Originator the Responsible Party or the Seller, as the case may beapplicable, any Mortgage Loan released pursuant hereto, and the . The Trustee shall not have no any further responsibility with regard to such Mortgage FileFile (it being understood that neither the Trustee nor the Custodian shall have any responsibility for determining the sufficiency of such assignment for its intended purpose). In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement Agreement, the Responsible Party or the Letter Agreement, as applicable, the related Originator, the Seller or the DepositorSeller, as applicable, may cause such Mortgage Loan to be removed from the Trust Fund REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c2.03(b); provided, however, the Responsible Party may not substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory or abusive lending law. It is understood and agreed that the obligation of the related Originator, the Seller Responsible Party or the DepositorSeller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee on behalf of and the Certificateholders.
(i) As promptly as practicable (and no later than 90 days) after the earlier of discovery by the related Servicer or receipt of notice by the related Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(cb) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which is two years after the Closing Date Startup Day for the Trust Fund. REMIC I. As to any Deleted Mortgage Loan for which an Originator, the Seller Responsible Party or the Depositor Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller Responsible Party or the DepositorSeller, as the case may beapplicable, delivering to the Custodian Custodian, on behalf of the Trustee, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Adjustment Amount (as described below), if any, in connection with such substitution. The In accordance with the Custodial Agreement, the Trustee or shall cause the Custodian shall to acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, review such documents as specified in Section 2.02 and cause the Custodian to deliver to the TrusteeDepositor, the Depositor Trustee and the related Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, in accordance with the Custodial Agreement, the Trustee or shall cause the Custodian shall to deliver to the Depositor Depositor, the Trustee and the related Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund REMIC I and will be retained by the related Originator, the Seller Responsible Party or the DepositorSeller, as the case may beapplicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the related Originator, the Seller Responsible Party or the DepositorSeller, as the case may beapplicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the TrusteeTrustee and the Custodian. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Mortgage Loan Purchase Agreement, including, in the case of a substitution effected by an Originator, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by the Seller, all applicable representations and warranties thereof included in the Letter Agreement, in each case as of the date of substitution. For any month in which an Originator, the Seller Responsible Party or the Depositor Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Servicer will determine the amount (the "Substitution Shortfall Adjustment Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the Stated Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance at the applicable Net Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller Responsible Party or the DepositorSeller, as the case may beapplicable, will deliver or cause to be delivered to the applicable Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall Adjustment Amount, if any, and upon receipt by the Custodian, on behalf of the Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification by the applicable Servicer to the Trustee of such deposit, the Trustee shall cause the Custodian to release as required by the Custodial Agreement to the related Originator, the Depositor Responsible Party or the Seller, as the case may beapplicable, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor Responsible Party or the Seller, as the case may beapplicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor Responsible Party or the Seller, as the case may beapplicable, shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereunderTrust REMIC, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any Trust REMIC hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding.
(dc) Upon discovery by the Depositor, the Responsible Party, the Seller, a Servicer, the Servicer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the related OriginatorResponsible Party, the Seller or the Depositor, as the case may be Depositor shall repurchase or, subject to the limitations set forth in Section 2.03(c2.03(b), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall cause such Such repurchase or substitution to shall be made by (i) the related OriginatorResponsible Party or the Seller, as the case may be, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the related Originator Responsible Party or the Seller, as the case may be, under the applicable Mortgage Loan Purchase Agreement, or (ii) the Seller, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee (or the Custodian on behalf of the Trustee) shall reconvey to the related OriginatorDepositor, the Seller Responsible Party or the DepositorSeller, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Carrington Mortgage Loan Trust Inc Series 2005-Opt2)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller Originator or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, the a Mortgage File or of the breach by any the Originator or the Seller of any representation, warranty or covenant under each the Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders (in Certificateholders, the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or Trustee shall request that the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which applicable, deliver such missing document or that the Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made), the Trustee shall promptly notify the Seller and the related Servicer of such defect, missing document or breach and cause such Originator or Seller, as applicable, to deliver such missing document or cure such defect or breach within 90 days from the date the Originator or the Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by , and if the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may beapplicable, does not deliver such missing document or if the Originator or the Seller, as applicable, does not cure such defect or breach in all material respects during such period, the Trustee shall enforce the obligations of such Originator or the Seller, as applicable, Originator's obligation under the related Mortgage Loan Purchase Agreement or and cause the Letter Agreement, as the case may be, Originator to repurchase such Mortgage Loan from the Trust Fund at the Purchase Price within on or prior to the Determination Date following the expiration of such 90 days after day period (subject to Section 2.03(e)). If the date Originator or the Seller, as applicable fails to repurchase or substitute for such Mortgage Loan in accordance with its obligations under the Mortgage Loan Purchase Agreement, the Trustee and the Depositor shall consult on which such further actions to be taken against the Originator or the Seller, as applicable, was notified (subject to Section 2.03(d)) of such missing document, defect or breach, if and to the extent that such Originator or the Seller, as applicable, is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so. The Purchase Price for the repurchased Mortgage Loan shall be deposited remitted to the Servicer for deposit in the Distribution Collection Account, and the Trustee, upon receipt of written certification from the Servicer of such deposit, shall release or cause to the Custodian to release to such Originator or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such the Originator or the Seller, as the case may beapplicable, any Mortgage Loan released pursuant hereto, hereto and the Trustee shall have no further responsibility with regard to such Mortgage FileFile (it being understood that the Trustee shall have no responsibility for determining the sufficiency of such assignment for its intended purpose). In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement Originator or the Letter Agreement, as applicable, the related Originator, the Seller or the DepositorSeller, as applicable, may cause such Mortgage Loan to be removed from the Trust Fund (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c2.03(d); provided, however, neither the Originator nor the Seller, as applicable, may substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory or abusive lending law. It is understood and agreed that the obligation of the related Originator, the Seller Originator or the DepositorSeller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy against the Originator or the Seller, as applicable, respecting such omission, defect or breach available to the Trustee on behalf of the Certificateholders.
(ib) As promptly as practicable (and no later than Within 90 days) after days of the earlier of discovery by the related Depositor or receipt of notice by the Depositor of the breach of any representation, warranty or covenant of the Depositor set forth in Section 2.06, which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Depositor shall cure such breach in all material respects.
(c) Within 90 days of the earlier of discovery by the Servicer or receipt of notice by the related Servicer of the breach of any representation, warranty or covenant of such the Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(cd) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which last Business Day that is within two years after the Closing Date for the Trust FundDate. As to any Deleted Mortgage Loan for which an Originator, the Seller Originator or the Depositor Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, delivering to the Custodian on behalf of the Trustee, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, Mortgage and the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Amount Adjustment (as described below), if any, in connection with such substitution. The Trustee or the Custodian shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days 45 days thereafter, shall review such documents as specified in Section 2.02 and deliver to the Trustee, the Depositor and the related Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee or the Custodian shall deliver to the Depositor and the related Servicer a certification substantially in the form of Exhibit C-2 F-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund and will be retained by the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on collections and recoveries in respect of such Deleted Mortgage Loan on or before in the Due Date in Period preceding the month of substitution, substitution and the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor Servicer shall give or cause to be given written notice to the Certificateholders Trustee, who shall forward such notice to the Certificateholders, that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitutionsubstitution by the Originator or the Seller, as applicable, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Mortgage Loan Purchase Agreement, including, in the case of a substitution effected by an Originator, including all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by the Seller, all applicable representations and warranties thereof included in the Letter Agreement, in each case Agreement as of the date of substitution. For any month in which an Originator, the Seller or the Depositor Originator substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Servicer will determine the amount (the "Substitution Shortfall AmountAdjustment"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate ofaggregate, as to each such Qualified Substitute Mortgage Loan, of the Stated Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance at the applicable Net Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, will deliver or cause to be delivered to the applicable Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall AmountAdjustment, if any, and the Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification by the applicable Servicer of such deposit, shall release to the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel to the effect that such substitution will not cause (ai) any federal tax to be imposed on any of the REMICs, created hereunderTrust Fund, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1860F(a)(I) of the Code or on "contributions after the startup date" under Section 860G(d)(1860G(d)(I) of the Code, Code or (bii) any REMIC 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.
(de) Upon discovery by the Depositor, the Seller, a Servicer, Servicer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other partiesparties hereto. In connection therewith, the related Originator, the Seller Originator or the Depositor, as the case may be be, shall repurchase or, subject to the limitations set forth in Section 2.03(c2.03(d), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall cause such Such repurchase or substitution to shall be made by (i) by the related Originator, Originator if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the related Originator under the applicable Mortgage Loan Purchase Agreement, Agreement or (ii) the Seller, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.042.06, or if its status as a non-qualified mortgage is a breach of any no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a) or 2.03(d), if made by the Originator, or Section 2.03(b), if made by the Depositor. The Trustee shall reconvey to the related Originator, the Seller Depositor or the DepositorOriginator, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Meritage Mortgage Loan Trust 2005-2)
Repurchase or Substitution. of Mortgage Loans by the Originators, Originators and the Seller or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, the a Mortgage File or of the breach by any either Originator or the Seller of any representation, warranty or covenant under each the Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, in respect of any Mortgage Loan which that materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee shall promptly notify the Seller Seller, the related Originator and the related Servicer of such defect, missing document or breach and cause such request that the related Originator or the Seller, as applicable, to deliver such missing document or cure such defect or breach within 90 60 days from the date the related Originator or the Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by , and if the Originator under the applicable Mortgage Loan Purchase Agreement. If such related Originator or the Seller, as the case may beapplicable, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee Servicer, in accordance with Section 3.02(b), shall enforce the obligations of such the related Originator or the Seller, as applicable, under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, to repurchase such Mortgage Loan from the Trust Fund REMIC I at the Purchase Price within 90 days after the date on which such the related Originator or the Seller, as applicable, was notified (subject to Section 2.03(d2.03(c)) of such missing document, defect or breach, if and to the extent that such the related Originator or the Seller, as applicable, Seller is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so. The Purchase Price for the repurchased Mortgage Loan shall be deposited remitted to the Servicer for deposit in the Distribution Account, Collection Account and the Trustee, upon receipt of written certification from the Servicer of such deposit, shall release or cause to the Custodian to release to such related Originator or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such the related Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such the related Originator or the Seller, as the case may beapplicable, any Mortgage Loan released pursuant hereto. In furtherance of the foregoing, if the related Originator or the Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS(R) System, the related Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the related Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. The Trustee shall not have no any further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, the related Originator, the Seller Originator or the DepositorSeller, as applicable, may cause such Mortgage Loan to be removed from the Trust Fund REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c2.03(b). It is understood and agreed that the obligation of the related Originator, Originator and the Seller or the Depositor, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee on behalf of and the Certificateholders.
(i) As promptly as practicable (and no later than 90 days) after the earlier of discovery by the related Servicer or receipt of notice by the related Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(cb) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which is two years after the Closing Date Startup Day for the Trust Fund. REMIC I. As to any Deleted Mortgage Loan for which an Originator, the related Originator or the Seller or the Depositor substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller related Originator or the DepositorSeller, as the case may beapplicable, delivering to the Custodian on behalf of the Trustee, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Amount (as described below), if any, in connection with such substitution. The Trustee or the Custodian shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, shall review such documents as specified in Section 2.02 and deliver to the Trustee, the Depositor and the related Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee or the Custodian shall deliver to the Depositor and the related Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund and will be retained by the related Originator, the Seller or the Depositor, as the case may be. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the related Originator, the Seller or the Depositor, as the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement, including, in the case of a substitution effected by an Originator, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by the Seller, all applicable representations and warranties thereof included in the Letter Agreement, in each case as of the date of substitution. For any month in which an Originator, the Seller or the Depositor substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Servicer will determine the amount (the "Substitution Shortfall Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the Stated Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance at the applicable Net Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller or the Depositor, as the case may be, will deliver or cause to be delivered to the applicable Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall Amount, if any, and the Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification by the applicable Servicer of such deposit, shall release to the related Originator, the Depositor or the Seller, as the case may be, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor or the Seller, as the case may be, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor or the Seller, as the case may be, shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereunder, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any REMIC hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding.
(d) Upon discovery by the Depositor, the Seller, a Servicer, or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the related Originator, the Seller or the Depositor, as the case may be shall repurchase or, subject to the limitations set forth in Section 2.03(c), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall cause such repurchase or substitution to be made by (i) the related Originator, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the related Originator under the applicable Mortgage Loan Purchase Agreement, (ii) the Seller, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee shall reconvey to the related Originator, the Seller or the Depositor, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.noted
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller Originator or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, the a Mortgage File or of the breach by any the Originator or the Seller Seller, as applicable, of any representation, warranty or covenant under each Mortgage Loan Purchase the Master Agreement or the Letter Assignment Agreement, as applicable, in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee (or the Custodian on its behalf) shall promptly notify the Seller and the related Servicer of such defect, missing document or breach and cause such the Servicer shall request that the Originator or Seller, as applicable, to deliver such missing document or that the Originator cure such defect or breach within 90 days from the date the Originator or Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by , and if the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may be, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee Servicer shall use commercially reasonable efforts to attempt to enforce the obligations of such Originator's obligation under the Master Agreement or the Seller's obligation under the Assignment Agreement and notify the Originator or the Seller, as applicable, under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, of its obligation to repurchase such Mortgage Loan from the Trust Fund at the Purchase Price within on or prior to the Determination Date following the expiration of such 90 days after the date on which such Originator or the Seller, as applicable, was notified day period (subject to Section 2.03(d2.03(e)) of such missing document); provided, defect or breachhowever, if and to the extent that such Originator or the Seller, as applicable, is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Servicer shall not be under any obligation to take any action pursuant to this paragraph unless directed by the Depositor and provided, further, the Depositor hereby agrees to assist the Servicer in enforcing any obligations of the Originator to repurchase or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase substitute for a Mortgage Loan in accordance with which has breached a representation or warranty under the preceding sentence, the Depositor shall do soAssignment Agreement. The Purchase Price for the repurchased Mortgage Loan shall be deposited remitted to the Servicer for deposit in the Distribution Collection Account, and the Trustee (or the Custodian on behalf of the Trustee), upon receipt of written certification from the Servicer of such deposit, shall release or cause to the Custodian to release to such Originator or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such the Originator or the Seller, as the case may beapplicable, any Mortgage Loan released pursuant hereto, hereto and the Trustee shall have no further responsibility with regard to such Mortgage FileFile (it being understood that neither the Trustee nor the Custodian shall have any responsibility for determining the sufficiency of such assignment for its intended purpose). In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement Originator or the Letter Agreement, as applicable, the related Originator, the Seller or the DepositorSeller, as applicable, may cause such Mortgage Loan to be removed from the Trust Fund (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c2.03(d); provided, however, the Seller may not substitute for any Mortgage Loan which breaches a representation or warranty regarding abusive or predatory lending laws. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS(R) System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS(R) System in accordance with MERS' rules and regulations. It is understood and agreed that the obligation of the related Originator, the Seller Originator or the DepositorSeller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy against the Originator or the Seller, as applicable, respecting such omission, defect or breach available to the Trustee on behalf of the Certificateholders.
(ib) As promptly as practicable (and no later than Within 90 days) after days of the earlier of discovery by the related Depositor or receipt of notice by the Depositor of the breach of any representation, warranty or covenant of the Depositor set forth in Section 2.06, which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Depositor shall cure such breach in all material respects.
(c) Within 90 days of the earlier of discovery by the Servicer or receipt of notice by the related Servicer of the breach of any representation, warranty or covenant of such the Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(cd) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which last Business Day that is within two years after the Closing Date for the Trust FundDate. As to any Deleted Mortgage Loan for which an Originator, the Seller Originator or the Depositor Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, delivering to the Trustee (or the Custodian on behalf of the Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, Mortgage and the Assignment to the TrusteeTrustee in blank, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Amount Adjustment (as described below), if any, in connection with such substitution. The Trustee (or the Custodian on behalf of the Trustee) shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days 45 days thereafter, shall review such documents as specified in Section 2.02 and deliver to the Trustee, the Depositor and the related Servicerdeliver, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee (or the Custodian on behalf of the Trustee) shall deliver to the Depositor and the related Servicer a certification substantially in the form of Exhibit C-2 F-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund and will be retained by the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on collections and recoveries in respect of such Deleted Mortgage Loan on or before in the Due Date in Period preceding the month of substitution, substitution and the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders Trustee, who shall forward such notice to the Certificateholders, that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitutionsubstitution by the Originator or the Seller, as applicable, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Assignment Agreement, including, in the case of a substitution effected by an Originator, including all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by the Seller, all applicable representations and warranties thereof included in the Letter Agreement, in each case Assignment Agreement as of the date of substitution. For any month in which an Originator, the Seller Originator or the Depositor Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Servicer will determine the amount (the "Substitution Shortfall AmountAdjustment"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate ofaggregate, as to each such Qualified Substitute Mortgage Loan, of the Stated Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance at the applicable Net Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, will deliver or cause to be delivered to the applicable Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall AmountAdjustment, if any, and the Trustee (or the Custodian on behalf of the Trustee), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification by the applicable Servicer of such deposit, shall release to the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereunderTrust Fund, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1860F(a)(I) of the Code or on "contributions after the startup date" under Section 860G(d)(1860G(d)(I) of the Code, Code or (b) any REMIC 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.
(de) Upon discovery by the Depositor, the Seller, a Servicer, Servicer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other partiesparties hereto. In connection therewith, the related Originator, the Seller Originator or the Depositor, as the case may be be, shall repurchase or, subject to the limitations set forth in Section 2.03(c2.03(d), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall cause such Such repurchase or substitution to shall be made by (i) by the related Originator, Originator if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the related Originator under the applicable Mortgage Loan Purchase Agreement, related Assignment Agreement or (ii) the Seller, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.042.06, or if its status as a non-qualified mortgage is a breach of any no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a) or 2.03(d), if made by the Originator, or Section 2.03(b), if made by the Depositor. The Trustee (or the Custodian on behalf of the Trustee) shall reconvey to the related Originator, the Seller Depositor or the DepositorOriginator, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
(f) Upon discovery or receipt of written notice of a breach by the Seller of any representation, warranty or covenant made by the Seller under the Assignment Agreement in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, and if either (i) such Mortgage Loan is not in breach of any representation, warranty or covenant of the Originator or (ii) the Originator has failed to remedy such representation, warranty or covenant with respect to such Mortgage Loan, then the Trustee shall promptly notify the Servicer of such breach and the Servicer shall request that the Seller remedy such breach by the Seller, to the extent provided in the Assignment Agreement, in the manner and within the time periods set forth in the Assignment Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Soundview Home Loan Trust 2005-Opt1)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller Originator or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, the a Mortgage File or of the breach by any the Originator or the Seller of any representation, warranty or covenant under each the Mortgage Loan Purchase Agreement (including any representation, warranty or covenant regarding the Letter Agreement, as applicable, Prepayment Charge Schedule) in respect of any Mortgage Loan which that materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee shall promptly notify the Originator, the NIMS Insurer, the Seller and the related Servicer of such defect, missing document or breach and cause such request that the Originator or the Seller, as applicable, to deliver such missing document or cure such defect or breach within 90 days from the date the Originator or the Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by , and if the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may beapplicable, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee shall enforce the obligations of such the Originator or the Seller, as applicable, under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, to repurchase such Mortgage Loan from the Trust Fund REMIC I at the Purchase Price within 90 days after the date on which such the Originator or the Seller, as applicable, was notified (subject to Section 2.03(d2.03(c)) of such missing document, defect or breach, if and to the extent that such the Originator or the Seller, as applicable, is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so. The Purchase Price for the repurchased Mortgage Loan shall be deposited remitted to the Servicer for deposit in the Distribution Account, Collection Account and the Trustee (or the Custodian on behalf of the Trustee), upon receipt of written certification from the Servicer of such deposit, shall release or cause to the Custodian to release to such Originator or the Seller, as applicable, the related Mortgage File and the Trustee (or the Custodian on behalf of the Trustee) shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such the Originator or the Seller, as the case may beapplicable, any Mortgage Loan released pursuant hereto. In furtherance of the foregoing, if the Originator or the Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator or the Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or the Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. Neither the Trustee nor the Custodian shall have no any further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement Agreement, the Originator or the Letter Agreement, as applicable, the related Originator, the Seller or the DepositorSeller, as applicable, may cause such Mortgage Loan to be removed from the Trust Fund REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c2.03(b); provided, however, the Originator or the Seller, as applicable, may not substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory or abusive lending law. It is understood and agreed that the obligation of the related Originator, the Seller Originator or the DepositorSeller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee on behalf of and the Certificateholders.
(i) As promptly as practicable (and no later than 90 days) after the earlier of discovery by the related Servicer or receipt of notice by the related Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(cb) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which is two years after the Closing Date Startup Day for the Trust Fund. REMIC I. As to any Deleted Mortgage Loan for which an Originator, the Seller Originator or the Depositor Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, delivering to the Trustee (or the Custodian on behalf of the Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment in blank or to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' ’ Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee (or the Custodian on behalf of the Trustee) shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, review such documents as specified in Section 2.02 and deliver to the TrusteeDepositor, the Depositor NIMS Insurer and the related Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee (or the Custodian on behalf of the Trustee) shall deliver to the Depositor Depositor, the NIMS Insurer and the related Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund REMIC I and will be retained by the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee, the Custodian, the Servicer and the NIMS Insurer. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Mortgage Loan Purchase Agreement, including, in the case of a substitution effected by an Originator, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by the Seller, all applicable representations and warranties thereof included in the Letter Agreement, in each case as of the date of substitution. For any month in which an Originator, the Seller Originator or the Depositor Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Servicer will determine the amount (the "“Substitution Shortfall Adjustment Amount"”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the Stated Principal Balance thereof as of the date of substitution, together with one month's ’s interest on such Stated Principal Balance at the applicable Net Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, will deliver or cause to be delivered to the applicable Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall Adjustment Amount, if any, and the Trustee (or the Custodian on behalf of the Trustee), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification written notice by the applicable Servicer of such deposit, shall release to the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, the related Mortgage File or Files and the Trustee (or the Custodian on behalf of the Trustee) shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereunderTrust REMIC, including without limitation, any federal tax imposed on "“prohibited transactions" ” under Section 860F(a)(1) of the Code or on "“contributions after the startup date" ” under Section 860G(d)(1) of the Code, or (b) any Trust REMIC hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding.
(dc) Upon discovery by the Depositor, the NIMS Insurer, the Originator, the Seller, a Servicer, the Servicer or the Trustee that any Mortgage Loan does not constitute a "“qualified mortgage" ” within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other partiesparties hereto and the Trustee shall give written notice to the Originator and the Seller. In connection therewith, the related Originator, the Seller or the Depositor, as the case may be Depositor shall repurchase or, subject to the limitations set forth in Section 2.03(c2.03(b), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall cause such Such repurchase or substitution to shall be made by (i) the related OriginatorOriginator or the Seller, as the case may be, if the affected Mortgage Loan's ’s status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the related Originator or the Seller, as the case may be, under the applicable Mortgage Loan Purchase Agreement, or (ii) the Seller, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's ’s status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee (or the Custodian on behalf of the Trustee) shall reconvey to the related OriginatorDepositor, the Seller Originator or the DepositorSeller, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Mortgage Asset Securitization Transactions Inc)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller Originator or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, the a Mortgage File or of the breach by any the Originator or the Seller of any representation, warranty or covenant under each the Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee shall promptly notify the Seller Originator, the Seller, the NIMS Insurer and the related Master Servicer of such defect, missing document or breach and cause such request that the Originator or the Seller, as applicable, to deliver such missing document or cure such defect or breach within 90 120 days from the date the Originator or the Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by , and if the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may beapplicable, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee shall enforce the obligations of such Originator's or the Seller's obligation under the Mortgage Loan Purchase Agreement and cause the Originator or the Seller, as applicable, under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, to repurchase such Mortgage Loan from the Trust Fund at the Purchase Price on or prior to the Determination Date following the expiration of such 120 day period (subject to Section 2.03(e)); provided that, in connection with any such breach that could not reasonably have been cured within 90 days after such 120 day period, if the date on which such Originator or the Seller, as applicable, was notified (subject shall have commenced to Section 2.03(d)) of cure such missing documentbreach within such 120 day period, defect or breach, if and to the extent that such Originator or the Seller, as applicable, is obligated shall be permitted to do so proceed thereafter diligently and expeditiously to cure the same within the additional period provided under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so. The Purchase Price for the repurchased Mortgage Loan shall be deposited in the Distribution Collection Account, and the Trustee, upon receipt of written certification from the Master Servicer of such deposit, shall release or cause to the Custodian to release to such Originator or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such the Originator or the Seller, as the case may beapplicable, any Mortgage Loan released pursuant hereto, hereto and the Trustee shall have no further responsibility with regard to such Mortgage FileFile (it being understood that the Trustee shall have no responsibility for determining the sufficiency of such assignment for its intended purpose). In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement Originator or the Letter Agreement, as applicable, the related Originator, the Seller or the DepositorSeller, as applicable, may cause such Mortgage Loan to be removed from the Trust Fund (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c2.03(d). It is understood and agreed that the obligation of the related Originator, the Seller Originator or the DepositorSeller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy against the Originator or the Seller, as applicable, respecting such omission, defect or breach available to the Trustee on behalf of the Certificateholders.
(ib) As promptly as practicable (and no later than Within 90 days) after days of the earlier of discovery by the related Depositor or receipt of notice by the Depositor of the breach of any representation, warranty or covenant of the Depositor set forth in Section 2.06 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Depositor shall cure such breach in all material respects.
(c) Within 90 days of the earlier of discovery by the Master Servicer or receipt of notice by the related Master Servicer of the breach of any representation, warranty or covenant of such the Master Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Master Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(cd) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which last Business Day that is within two years after the Closing Date for the Trust FundDate. As to any Deleted Mortgage Loan for which an Originator, the Seller Originator or the Depositor Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, delivering to the Custodian on behalf of the Trustee, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, Mortgage and the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Amount Adjustment (as described below), if any, in connection with such substitution. The Trustee or the Custodian shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, shall review such documents as specified in Section 2.02 and deliver to the Trustee, the Depositor Master Servicer and the related ServicerNIMS Insurer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee or the Custodian shall deliver to the Depositor Master Servicer, the Seller and the related Servicer NIMS Insurer a certification substantially in the form of Exhibit C-2 F-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund and will be retained by the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on collections and recoveries in respect of such Deleted Mortgage Loan on or before in the Due Date in Period preceding the month of substitution, substitution and the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor Originator or the Seller, as applicable, shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the NIMS Insurer and the Trustee. Upon such substitutionsubstitution by the Originator or the Seller, as applicable, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Mortgage Loan Purchase Agreement, including, in the case of a substitution effected by an Originator, including all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by the Seller, all applicable representations and warranties thereof included in the Letter Agreement, in each case Agreement as of the date of substitution. For any month in which an Originator, the Seller Originator or the Depositor Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Master Servicer will determine the amount (the "Substitution Shortfall AmountAdjustment"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate ofaggregate, as to each such Qualified Substitute Mortgage Loan, of the Stated Principal Balance principal balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance principal balance at the applicable Net Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, will deliver or cause to be delivered to the applicable Master Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall AmountAdjustment, if any, and the Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification by the applicable Master Servicer of such deposit, shall release to the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereunderTrust Fund, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1860F(a)(l) of the Code or on "contributions after the startup date" under Section 860G(d)(1860G(d)(l) of the Code, Code or (b) any REMIC 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.
(de) Upon discovery by the DepositorOriginator, the Seller, a the Master Servicer, the NIMS Insurer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the related Originator, the Seller Seller, or the Depositor, as the case may be be, shall repurchase or, subject to the limitations set forth in Section 2.03(c2.03(d), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall cause such Such repurchase or substitution to shall be made by (i) by the related OriginatorOriginator or the Seller, as applicable, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the related Originator or the Seller, as applicable, under the applicable Mortgage Loan Purchase Agreement, Agreement or (ii) the Seller, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.042.06, or if its status as a non-qualified mortgage is a breach of any no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a), if made by the Originator or the Seller, or Section 2.03(b), if made by the Depositor. The Trustee shall reconvey to the related OriginatorDepositor, the Seller or the DepositorOriginator, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Option One Mortgage Accept Corp Asset Backed Cer Ser 2002-4)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller Originator or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of written notice from the Custodian of any materially defective document in, or that a document is missing from, the a Mortgage File or from Depositor, the Servicer, the Master Servicer, the Trust Administrator or the Custodian of the breach by any the Originator or the Seller of any representation, warranty or covenant under each Mortgage Loan Purchase the Assignment Agreement or the Letter AgreementOriginator Master Agreement (including any representation, as applicable, warranty or covenant regarding the Prepayment Charge Schedule) in respect of any Mortgage Loan which that materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee shall promptly notify the Seller Trust Administrator, the Seller, the NIMS Insurer, the Originator, the Servicer and the related Master Servicer of such defect, missing document or breach and cause such request that the Originator or the Seller, as applicable, to deliver such missing document or cure such defect or breach within 90 days from the date the Originator or the Seller, as applicable, was notified of such missing document, defect or breach; provided , and if the Trustee receives written notice from the Depositor, the Servicer, the Master Servicer, the Trust Administrator or the Custodian that such missing document was not previously delivered by the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may beapplicable, does has not deliver delivered such missing document or cure cured such defect or breach in all material respects during such period, the Trustee shall enforce the obligations of such the Originator or the Seller, as applicable, under the related Mortgage Loan Purchase Assignment Agreement or the Letter Agreement, as the case may be, and/or Originator Master Agreement to repurchase such Mortgage Loan from the Trust Fund REMIC I at the Purchase Price within 90 days after the date on which such Originator or the Seller, as applicable, was notified (subject to Section 2.03(d)) of such missing document, defect or breach, if and to the extent that such Originator or the Seller, as applicable, is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do soPrice. The Purchase Price for the repurchased Mortgage Loan shall be deposited remitted to the Servicer for deposit in the Distribution Account, Collection Account and the Trustee (or the Custodian on behalf of the Trustee), upon receipt of written certification from the Servicer of such deposit, shall release or cause to the Custodian to release to such Originator or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such the Originator or the Seller, as the case may beapplicable, any Mortgage Loan released pursuant hereto. In furtherance of the foregoing, if the Originator or Seller, as applicable, is not a member of MERS and repurchases a Mortgage Loan which is registered on the MERS® System, the Originator or Seller, as applicable, at its own expense and without any right of reimbursement, shall cause MERS to execute and deliver an assignment of the Mortgage in recordable form to transfer the Mortgage from MERS to the Originator or Seller, as applicable, and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations. Neither the Trustee nor the Custodian shall have no any further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided aboveabove and in the case of the Originator, if so provided in the related Mortgage Loan Purchase Agreement or the Letter Originator Master Agreement, as applicable, the related Originator, the Seller Originator or the DepositorSeller, as applicable, may cause such Mortgage Loan to be removed from the Trust Fund REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c2.03(b); provided, however, the Originator or Seller, as applicable, may not substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory or abusive lending law. It is understood and agreed that the obligation of the related Originator, the Seller Originator or the DepositorSeller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee on behalf of and the Certificateholders.
(i) As promptly as practicable (and no later than 90 days) after the earlier of discovery by the related Servicer or receipt of notice by the related Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(cb) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which is two years after the Closing Date Startup Day for the Trust Fund. REMIC I. As to any Deleted Mortgage Loan for which an Originatorthe Originator or Seller, the Seller or the Depositor as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, delivering to the Trustee (or the Custodian on behalf of the Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment in blank or to the Trustee (or the Custodian on behalf of the Trustee), and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' ’ Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee (or the Custodian on behalf of the Trustee) shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, review such documents as specified in Section 2.02 and deliver to the TrusteeDepositor, the Depositor NIMS Insurer and the related Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee (or the Custodian on behalf of the Trustee) shall deliver to the Depositor Depositor, the NIMS Insurer and the related Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund REMIC I and will be retained by the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the related Originator, the Seller Originator or the DepositorSeller, as the case may be, applicable,shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Master Servicer, the Trust Administrator, the Trustee, the Custodian, the Servicer and the NIMS Insurer. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Assignment Agreement, including, in the case of a substitution effected by an Originator, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Originator Master Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by the Seller, all applicable representations and warranties thereof included in the Letter Agreement, in each case as of the date of substitution. For any month in which an Originatorthe Originator or Seller, the Seller or the Depositor as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Servicer will determine the amount (the "“Substitution Shortfall Adjustment Amount"”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the Stated Principal Balance thereof as of the date of substitution, together with one month's ’s interest on such Stated Principal Balance at the applicable Net Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto. On the date of such substitution, which shall be on the Originator or prior to the next succeeding Determination Date, the related Originator, the Seller or the DepositorSeller, as the case may beapplicable, will deliver or cause to be delivered to the applicable Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall Adjustment Amount, if any, and the Trustee (or the Custodian on behalf of the Trustee), upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification written notice by the applicable Servicer of such deposit, shall release to the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall obtain at its own expense and deliver to the Trustee Trustee, the Trust Administrator and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereunderTrust REMIC, including without limitation, any federal tax imposed on "“prohibited transactions" ” under Section 860F(a)(1) of the Code or on "“contributions after the startup date" ” under Section 860G(d)(1) of the Code, or (b) any Trust REMIC hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding.
(dc) Upon discovery by the Depositor, the NIMS Insurer, the Seller, a the Servicer, the Master Servicer or the Trustee Trust Administrator that any Mortgage Loan does not constitute a "“qualified mortgage" ” within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other partiesparties hereto and the Trustee shall give written notice to the Originator or Seller, as applicable. In connection therewith, the related Originator, the Seller or the Depositor, as the case may be Depositor shall repurchase or, subject to the limitations set forth in Section 2.03(c2.03(b), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall cause such Such repurchase or substitution to shall be made by (i) the related OriginatorOriginator or Seller, as applicable, if the affected Mortgage Loan's ’s status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the related Originator or Seller, as applicable, under the applicable Mortgage Loan Purchase Agreement, (ii) Assignment Agreement or the Seller, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Seller under the Letter Originator Master Agreement, or (iiiii) the Depositor, if the affected Mortgage Loan's ’s status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee shall reconvey to the related OriginatorDepositor, the Seller Originator or the Depositor, as the case may be, Seller the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Mastr Asset Backed Securities Trust 2006-Fre1)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller Originator or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, the a Mortgage File or of the breach by any the Originator or the Seller of any representation, warranty or covenant under each the Mortgage Loan Purchase Agreement (including any representation, warranty or covenant regarding the Letter Agreement, as applicable, Prepayment Charge Schedule) in respect of any Mortgage Loan which that materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee shall promptly notify the Originator, the Seller and the related Servicer of such defect, missing document or breach and cause such request that the Originator or the Seller, as applicable, to deliver such missing document or cure such defect or breach within 90 days from the date the Originator or the Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by , and if the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may beapplicable, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee Servicer, to the extent it is not the Originator, the Seller or an Affiliate of the Seller, and otherwise the Trustee, in accordance with Section 3.02(b), shall enforce the obligations of such the Originator or the Seller, as applicable, under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, to repurchase such Mortgage Loan from the Trust Fund REMIC I at the Purchase Price within 90 days after the date on which such the Originator or the Seller, as applicable, was notified (subject to Section 2.03(d2.03(c)) of such missing document, defect or breach, if and to the extent that such the Originator or the Seller, as applicable, is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so. The Purchase Price for the repurchased Mortgage Loan shall be deposited remitted to the Servicer for deposit in the Distribution Account, Collection Account and the Trustee, upon receipt of written certification from the Servicer of such deposit, shall release or cause to the Custodian to release to such Originator or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such the Originator or the Seller, as the case may beapplicable, any Mortgage Loan released pursuant hereto, and the . The Trustee shall not have no any further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement Agreement, the Originator or the Letter Agreement, as applicable, the related Originator, the Seller or the DepositorSeller, as applicable, may cause such Mortgage Loan to be removed from the Trust Fund REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c2.03(b); provided, however, the Originator may not substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory or abusive lending law. It is understood and agreed that the obligation of the related Originator, the Seller Originator or the DepositorSeller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee on behalf of and the Certificateholders.
(i) As promptly as practicable (and no later than 90 days) after the earlier of discovery by the related Servicer or receipt of notice by the related Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(cb) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which is two years after the Closing Date Startup Day for the Trust Fund. REMIC I. As to any Deleted Mortgage Loan for which an Originator, the Seller Originator or the Depositor Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, delivering to the Custodian on behalf of the Trustee, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee or the Custodian shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, review such documents as specified in Section 2.02 and deliver to the Trustee, the Depositor and the related Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee or the Custodian shall deliver to the Depositor and the related Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund REMIC I and will be retained by the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and the Mortgage Loan Purchase Agreement, including, in the case of a substitution effected by an Originator, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by the Seller, all applicable representations and warranties thereof included in the Letter Agreement, in each case as of the date of substitution. For any month in which an Originator, the Seller Originator or the Depositor Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Servicer will determine the amount (the "Substitution Shortfall Adjustment Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the Stated Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance at the applicable Net Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances (including Nonrecoverable Advances and Nonrecoverable Servicing Advances) related thereto. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, will deliver or cause to be delivered to the applicable Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall Adjustment Amount, if any, and the Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification by the applicable Servicer of such deposit, shall release to the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereunderTrust REMIC, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any Trust REMIC hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding.
(dc) Upon discovery by the Depositor, the Originator, the Seller, a Servicer, the Servicer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the related Originator, the Seller or the Depositor, as the case may be Depositor shall repurchase or, subject to the limitations set forth in Section 2.03(c2.03(b), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall cause such Such repurchase or substitution to shall be made by (i) the related OriginatorOriginator or the Seller, as the case may be, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the related Originator or the Seller, as the case may be, under the applicable Mortgage Loan Purchase Agreement, or (ii) the Seller, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee shall reconvey to the related OriginatorDepositor, the Seller Originator or the DepositorSeller, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc Series 2004-Opt1)
Repurchase or Substitution. of Mortgage Home Equity Loans by the Originators, the Seller or the Depositor; Payment of Prepayment Charges in the event of breach.
(a) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, the Mortgage File or of the breach by any Originator or the Seller of any representation, warranty or covenant under each the Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, in respect of any Mortgage Home Equity Loan which materially adversely affects the value of such Mortgage Home Equity Loan or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each the Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made), the Custodian on behalf of the Trustee shall promptly notify the Seller Seller, the NIMs Insurer, the Trustee and the related Master Servicer of such defect, missing document or breach and cause request that such Originator or Seller, as applicable, to the Seller deliver such missing document or cure such defect or breach within 90 days from the date the Originator or Seller, as applicable, the Seller was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may be, Seller does not deliver such missing document or cure such defect or breach in all material respects during such period, the related Master Servicer (or, in accordance with Section 3.02(b), the Trustee or the Trust Administrator) shall enforce the obligations of such Originator or the Seller, as applicable, Seller under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, to repurchase such Mortgage Home Equity Loan from the Trust Fund REMIC I at the Purchase Price within 90 days after the date on which such Originator or the Seller, as applicable, Seller was notified (subject to Section 2.03(d2.03(e)) of such missing document, defect or breach, if and to the extent that such Originator or the Seller, as applicablethe case may be, is obligated to do so under the related Mortgage Loan Purchase Agreement or Agreement. The Purchase Price for the Letter Agreementrepurchased Home Equity Loan shall be deposited in the Collection Account, as applicable. In and the event that Custodian, on behalf of the Trustee, upon receipt of written certification from the related Master Servicer of such deposit, shall release to such Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so. The Purchase Price for the repurchased Mortgage Loan shall be deposited in the Distribution Account, and the Trustee, upon receipt of such deposit, shall release or cause the Custodian to release to such Originator or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such Originator or the Seller, as applicable, Seller shall furnish to it and as shall be necessary to vest in such Originator or the Seller, as the case may be, any Mortgage Home Equity Loan released pursuant hereto, and neither the Custodian nor the Trustee shall have no any further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Home Equity Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, the related Originator, the Seller Originator or the DepositorSeller, as applicablethe case may be, may cause such Mortgage Home Equity Loan to be removed from the Trust Fund REMIC I (in which case it shall become a Deleted Mortgage Home Equity Loan) and substitute one or more Qualified Substitute Mortgage Home Equity Loans in the manner and subject to the limitations set forth in Section 2.03(c2.03(d). It is understood and agreed that the obligation of the related Originator, Originator or the Seller or the Depositor, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Home Equity Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee and the Trust Administrator on behalf of the Certificateholders.
(b) (i) As promptly as practicable (and no later than 90 days) after the earlier of discovery by the related Servicer or receipt of notice by the related Servicer of the breach of any representationSubject to Section 2.03(e), warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects.
(ii) Within within 90 days of the earlier of discovery by a Servicer the Seller or receipt of notice by a Servicer the Seller of the breach of any representation, representation or warranty or covenant of such Servicer the Seller set forth in Section 2.05 5 of the Mortgage Loan Purchase Agreement with respect to any Home Equity Loan, which materially and adversely affects the interests value of such Home Equity Loan or the interest therein of the Holders of the Class P Certificates to any Prepayment ChargeCertificateholders, the related Servicer Seller shall (i) cure such breach in all material respects. If , (ii) repurchase the covenant made by Home Equity Loan from REMIC I at the Purchase Price or (iii) remove such Servicer Home Equity Loan from REMIC I (in which case it shall become a Deleted Home Equity Loan) and substitute one or more Qualified Substitute Home Equity Loans in the manner and subject to the limitations set forth in Section 2.05(viii) is breached, such 2.03(d). The Purchase Price for any repurchased Home Equity Loan shall be delivered to the related Master Servicer must pay into for deposit in the Collection Account Account, and the amount of the waived Prepayment Charge.
(c) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which is two years after the Closing Date for the Trust Fund. As to any Deleted Mortgage Loan for which an OriginatorCustodian, the Seller or the Depositor substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller or the Depositor, as the case may be, delivering to the Custodian on behalf of the Trustee, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Amount (as described below), if any, in connection with such substitution. The Trustee or the Custodian shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, review such documents as specified in Section 2.02 and deliver to the Trustee, the Depositor and the related Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee or the Custodian shall deliver to the Depositor and the related Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund and will be retained by the related Originator, the Seller or the Depositor, as the case may be. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the related Originator, the Seller or the Depositor, as the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement, including, in the case of a substitution effected by an Originator, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by the Seller, all applicable representations and warranties thereof included in the Letter Agreement, in each case as of the date of substitution. For any month in which an Originator, the Seller or the Depositor substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Servicer will determine the amount (the "Substitution Shortfall Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the Stated Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance at the applicable Net Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller or the Depositor, as the case may be, will deliver or cause to be delivered to the applicable Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall Amount, if any, and the Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or Loans and written certification by the applicable from such Master Servicer of such deposit, shall at the Seller's direction release to the related Originator, the Depositor or the Seller, as the case may be, Seller the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignmentassignment furnished by the Seller, in each case without recourse, as the related Originator, the Depositor or the Seller, as the case may be, Seller shall deliver furnish to it and as shall be necessary to vest therein in the Seller any Deleted Mortgage Home Equity Loan released pursuant hereto. In addition, the related Originator, the Depositor or the Seller, as the case may be, shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereunder, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any REMIC hereunder to fail to qualify as a REMIC at any time that any Certificate is outstanding.
(d) Upon discovery by the Depositor, the Seller, a Servicer, or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the related Originator, the Seller or the Depositor, as the case may be shall repurchase or, subject to the limitations set forth in Section 2.03(c), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall cause such repurchase or substitution to be made by (i) the related Originator, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the related Originator under the applicable Mortgage Loan Purchase Agreement, (ii) the Seller, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee shall reconvey to the related Originator, the Seller or the Depositor, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller Originator or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, the a Mortgage File or of the breach by any the Originator or the Seller of any representation, warranty or covenant under each the Master Agreement or the Mortgage Loan Purchase Agreement or the Letter Agreement, as applicablerespectively, in respect of any Mortgage Loan which materially 58 adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee shall promptly notify the Seller and the related Servicer of such defect, missing document or breach and cause such the Servicer shall request that the Originator or the Seller, as applicable, to deliver such missing document or that the Originator or the Seller, as applicable, cure such defect or breach within 90 days from the date the Originator or the Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by , and if the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may beapplicable, does not deliver such missing document or if the Originator or the Seller, as applicable, does not cure such defect or breach in all material respects during such period, the Trustee Servicer (or, to the extent provided in Section 3.02, the Trustee) shall enforce the obligations of such Originator's obligation under the Master Agreement or the Seller's obligation under the Mortgage Loan Purchase Agreement, as applicable, and cause the Originator or the Seller, as applicable, under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, to repurchase such Mortgage Loan from the Trust Fund at the Purchase Price within on or prior to the Determination Date following the expiration of such 90 days after the date on which such Originator or the Seller, as applicable, was notified day period (subject to Section 2.03(d2.03(e)) of such missing document, defect or breach, if and to the extent that such Originator or the Seller, as applicable, is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so). The Purchase Price for the repurchased Mortgage Loan shall be deposited remitted to the Servicer for deposit in the Distribution Collection Account, and the Trustee, upon receipt of written certification from the Servicer of such deposit, shall release or cause to the Custodian to release to such Originator or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such the Originator or the Seller, as the case may beapplicable, any Mortgage Loan released pursuant hereto, hereto and the Trustee shall have no further responsibility with regard to such Mortgage FileFile (it being understood that the Trustee shall have no responsibility for determining the sufficiency of such assignment for its intended purpose). In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement Originator or the Letter Agreement, as applicable, the related Originator, the Seller or the DepositorSeller, as applicable, may cause such Mortgage Loan to be removed from the Trust Fund (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c2.03(d); provided, however, neither the Originator nor the Seller, as applicable, may substitute for any Mortgage Loan which breaches a representation or warranty regarding abusive or predatory lending laws. It is understood and agreed that the obligation of the related Originator, the Seller Originator or the DepositorSeller, as applicable, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy against the Originator or the Seller, as applicable, respecting such omission, defect or breach available to the Trustee on behalf of the Certificateholders.
(ib) As promptly as practicable (and no later than Within 90 days) after days of the earlier of discovery by the related Depositor or receipt of notice by the Depositor of the breach of any representation, warranty or covenant of the Depositor set forth in Section 2.06, which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the Depositor shall cure such breach in all material respects.
(c) Within 90 days of the earlier of discovery by the Servicer or receipt of notice by the related Servicer of the breach of any representation, warranty or covenant of such the Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(cd) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which last Business Day that is within two years after the Closing Date for the Trust FundDate. As to any Deleted Mortgage Loan for which an Originator, the Seller Originator or the Depositor Seller, as applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, delivering to the Custodian on behalf of the Trustee, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, Mortgage and the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Amount Adjustment (as described below), if any, in connection with such substitution. The Trustee or the Custodian shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days 45 days thereafter, shall review such documents as specified in Section 2.02 and deliver to the Trustee, the Depositor and the related Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee or the Custodian shall deliver to the Depositor and the related Servicer a certification substantially in the form of Exhibit C-2 F-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund and will be retained by the related Originator, the Seller or the Depositor, as the case may beSeller. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on collections and recoveries in respect of such Deleted Mortgage Loan on or before in the Due Date in Period preceding the month of substitution, substitution and the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor Servicer shall give or cause to be given written notice to the Certificateholders Trustee, who shall forward such notice to the Certificateholders, that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitutionsubstitution by the Originator or the Seller, as applicable, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement, includingthe Master Agreement and the Mortgage Loan Purchase Agreement, in the case of a substitution effected by an Originator, including all applicable representations and warranties thereof included in the related Master Agreement and the Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by the Seller, all applicable representations and warranties thereof included in the Letter Agreement, in each case Agreement as of the date of substitution. For any month in which an Originator, the Seller Originator or the Depositor Seller, as applicable, substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Servicer will determine the amount (the "Substitution Shortfall AmountAdjustment"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate ofaggregate, as to each such Qualified Substitute Mortgage Loan, of the Stated Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance at the applicable Net Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances. On the date of such substitution, which shall be on or prior the Servicer (or, to the next succeeding Determination Dateextent provided in Section 3.02, the related Trustee) shall enforce the Originator, 's obligation under the Seller Master Agreement or the DepositorSeller's obligation under the Mortgage Loan Purchase Agreement, as applicable, and cause the case may beOriginator or the Seller, will as applicable, to deliver or cause to be delivered to the applicable Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall AmountAdjustment, if any, and the Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification by the applicable Servicer of such deposit, shall release to the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereunderTrust Fund, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1860F(a)(I) of the Code or on "contributions after the startup date" under Section 860G(d)(1860G(d)(I) of the Code, Code or (b) any REMIC 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.
(de) Upon discovery by the Depositor, the Seller, a Servicer, Servicer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other partiesparties hereto. In connection therewith, the related Originator, the Seller or the Depositor, as the case may be be, shall repurchase or, subject to the limitations set forth in Section 2.03(c2.03(d), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall cause such Such repurchase or substitution to shall be made by (i) the related Originator, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the related Originator under the applicable Mortgage Loan Purchase Agreement, (ii) the Seller, Seller if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Seller under the Letter Agreement, Mortgage Loan Purchase Agreement or (iiiii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.042.06, or if its status as a non-qualified mortgage is a breach of any no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a) or 2.03(d), if made by the Seller, or Section 2.03(b), if made by the Depositor. The Trustee shall reconvey to the related Originator, the Seller Depositor or the DepositorSeller, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Financial Asset Securities Corp Finance Amer Mo Ln Tr 2003-1)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller Originator or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, a Mortgage File or that any document in a Mortgage File is materially inconsistent with the Mortgage File Loan Schedules or of the breach by any the Originator or the Seller of any representation, representation or warranty or covenant under each the Originator Mortgage Loan Purchase Agreement or the Letter Mortgage Loan Purchase Agreement, as applicable, in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan Loan, Prepayment Charge or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee shall promptly notify the Seller and the related Servicer of such defect, missing document or breach and cause such Originator or Seller, as applicable, to deliver such missing document or cure such defect or breach within 90 days from the date the Originator or Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may be, the Servicer and the NIMS Insurer of such defect, missing document or breach and request that, in the case of a defective or missing document, the Seller cure such defect or deliver such missing document within 120 days from the date the Seller was notified of such missing document or defect or, in the case of a breach of a representation or warranty, request the Originator or the Seller, as applicable, cure such breach within 90 days from the date the Originator or the Seller, as the case may be, was notified of such breach. If the Seller does not deliver such missing document or cure such defect or if the Originator or the Seller, as applicable, does not cure such breach in all material respects during such period, the Trustee shall enforce the obligations of such Originator's or the Seller's obligation, as the case may be, under the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as applicable, and cause the Originator or the Seller, as applicable, under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, to repurchase such Mortgage Loan from the Trust Fund at the Purchase Price within 90 days after on or prior to the date on which Determination Date following the expiration of such Originator or the Seller, as applicable, was notified period (subject to Section 2.03(d)) of such missing document, defect or breach, if and to the extent that such Originator or the Seller, as applicable, is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so). The Purchase Price for the repurchased Mortgage Loan shall be deposited in the Distribution Collection Account, and the Trustee, upon receipt of written notice from the Servicer of such deposit, shall release or cause to the Custodian to release to such Originator or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such the Originator or the Seller, as the case may be, any Mortgage Loan released pursuant hereto, hereto and the Trustee shall have no further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement Originator or the Letter AgreementSeller, as applicable, the related Originator, the Seller or the Depositor, as applicablecase may be, may cause such Mortgage Loan to be removed from the Trust Fund (in which case it shall become a Deleted Defective Mortgage Loan) and substitute one or more Qualified Eligible Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c); provided, however, the Originator or the Seller, as applicable, may not substitute an Eligible Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory or abusive lending law. With respect to the representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement that are made to the best of the Originator's or the Seller's knowledge, as applicable, or as to which the Originator or the Seller, as the case may be, has no knowledge, if it is discovered by the Depositor, the Servicer, the NIMS Insurer or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, Prepayment Charge or the interest therein of the Certificateholders then, notwithstanding the Originator's or the Seller's lack of knowledge with respect to the substance of such representation and warranty being inaccurate at the time the representation or warranty was made, such inaccuracy shall be deemed a breach of the applicable representation or warranty. It is understood and agreed that the obligation representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement shall survive delivery of the related Originator, Mortgage Files to the Trustee and the Closing Date and shall inure to the benefit of the Certificateholders notwithstanding any restrictive or qualified endorsement or assignment. It is understood and agreed that the obligations of the Originator and the Seller set forth in this Section 2.03(a) to cure, substitute for or repurchase a Mortgage Loan pursuant to the Originator Mortgage Loan Purchase Agreement or the DepositorMortgage Loan Purchase Agreement, as applicable, and to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall pay the Reimbursement Amount constitute the sole remedy respecting such omission, defect or breach remedies available to the Certificateholders and to the Trustee on their behalf respecting a breach of the Certificateholdersrepresentations and warranties contained in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement. The representations and warranties of the Originator with respect to the Mortgage Loans in the Originator Mortgage Loan Purchase Agreement, which have been assigned to the Trustee hereunder, were made as of the dates specified in the Originator Mortgage Loan Purchase Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Originator under the Originator Mortgage Loan Purchase Agreement and (ii) a representation or warranty of the Seller under the Mortgage Loan Purchase Agreement (other than Seller's representations with respect to predatory and abusive lending laws in Sections 3.01(i), 3.01(ii) and 3.01(iii) of the Mortgage Loan Purchase Agreement), the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's right to enforce the obligations of the Originator under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans (except as otherwise set forth in this paragraph) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Originator in the Originator Mortgage Loan Purchase Agreement, without regard to whether the Originator fulfills its contractual obligations in respect of such representation or warranty. In addition, to the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (x) the Originator's representation with respect to predatory and abusive lending laws in Section 3.02(i), (tt) and (ggg) of the Originator Mortgage Loan Purchase Agreement and (y) the Seller's representation with respect to predatory and abusive lending laws in Section 3.01(i), 3.01(ii) or 3.01(iii) of the Mortgage Loan Purchase Agreement, the Originator shall be obligated to pay the Reimbursement Amount relating to such Mortgage Loan, and, to the extent the Originator fails to do so, the Trustee shall be entitled to enforce the Seller's obligation to pay such Reimbursement Amount. In any event, the Reimbursement Amount shall be delivered to the Servicer for deposit into the Collection Account within ten (10) days from the date the Seller was notified by the Trustee of the Reimbursement Amount.
(ib) As promptly as practicable (and no later than Within 90 days) after days of the earlier of discovery by the related Servicer or receipt of notice by the related Servicer of the breach of any representation, warranty or covenant of such the Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(c) Any substitution of Qualified Eligible Substitute Mortgage Loans for Deleted Defective Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which last Business Day that is within two years after the Closing Date for the Trust FundDate. As to any Deleted Defective Mortgage Loan for which an Originator, the Originator or the Seller or the Depositor substitutes a Qualified an Eligible Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, delivering to the Custodian on behalf of the Trustee, Trustee for such Qualified Eligible Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Eligible Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Amount Adjustment (as described below), if any, in connection with such substitution. The Trustee or the Custodian shall acknowledge receipt for such Qualified Eligible Substitute Mortgage Loan or Loans and, within ten (10) Business Days thereafter, shall review such documents as specified in Section 2.02 and deliver to the Trustee, the Depositor Servicer and the related ServicerNIMS Insurer, with respect to such Qualified Eligible Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee or the Custodian shall deliver to the Depositor Servicer and the related Servicer NIMS Insurer a certification substantially in the form of Exhibit C-2 F-2 hereto with respect to such Qualified Eligible Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Eligible Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund and will be retained by the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on collections and recoveries in respect of such Deleted Defective Mortgage Loan on or before the Due Date in the month Collection Period or Prepayment Period, as applicable, preceding the date of substitution, substitution and the related OriginatorDepositor, the Seller Originator or the DepositorSeller, as the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Defective Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule Schedules to reflect the removal of such Deleted Defective Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Eligible Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule Schedules to the Trustee, the Servicer and the NIMS Insurer. Upon such substitution, such Qualified Eligible Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and, in the case of a substitution effected by the Originator or the Seller, the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as the case may be, including, in the case of a substitution effected by an Originator, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by Originator or the Seller, all applicable representations and warranties thereof included in the Letter Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, in each as the case may be, as of the date of substitution. For any month in which an Originator, the Originator or the Seller or the Depositor substitutes one or more Qualified Eligible Substitute Mortgage Loans for one or more Deleted Defective Mortgage Loans, the related Servicer will determine the amount (the "Substitution Shortfall AmountAdjustment"), if any, by which the aggregate Purchase Price of all such Deleted Defective Mortgage Loans exceeds the aggregate ofaggregate, as to each such Qualified Eligible Substitute Mortgage Loan, of the Stated Principal Balance principal balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance principal balance at the applicable Net Mortgage Interest Rate, plus all outstanding P&I Advances and Servicing Advances. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller Originator or the DepositorSeller, as the case may be, will deliver or cause to be delivered to the applicable Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall AmountAdjustment, if any, and the Trustee, upon receipt of the related Qualified Eligible Substitute Mortgage Loan or Loans and certification notice by the applicable Servicer of such deposit, shall release to the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor Originator or the Seller, as the case may be, shall deliver to it and as shall be necessary to vest therein any Deleted Defective Mortgage Loan released pursuant hereto. In addition, in connection with the related substitution of one or more Eligible Substitute Mortgage Loans for one or more Defective Mortgage Loans, in the event the Trust incurs costs or damages arising in connection with a breach of the Originator's representations with respect to predatory or abusive lending laws set forth in Section 3.02(i), (tt) and (ggg) of the Originator Mortgage Loan Purchase Agreement, the Depositor Seller shall be required to reimburse the Trust for the Reimbursement Amount pursuant to the Mortgage Loan Purchase Agreement to the extent that the Originator fails to do so. In addition, the Originator or the Seller, as the case may beapplicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to an Adverse REMIC Event. If such Opinion of Counsel can not be imposed on any delivered, then such substitution may only be effected at such time as the required Opinion of the REMICs, created hereunder, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any REMIC hereunder to fail to qualify as a REMIC at any time that any Certificate is outstandingCounsel can be given.
(d) Upon discovery by the DepositorOriginator, the Seller, a the Servicer, the NIMS Insurer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the related Originator, the Seller Originator or the DepositorSeller, as the case may be applicable, shall repurchase or, subject to the limitations set forth in Section 2.03(c), substitute one or more Qualified Eligible Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall In addition, upon discovery that a Mortgage Loan is defective in a manner that would cause such repurchase or substitution it to be made by (i) a "defective obligation" within the related Originatormeaning of Treasury Regulations relating to REMICs, if the affected Mortgage Loan's status as a non-qualified mortgage is Originator or results from a breach of any representation, warranty or covenant made by the related Originator under the applicable Mortgage Loan Purchase Agreement, (ii) the Seller, if as the affected Mortgage Loan's status as a non-qualified mortgage is case may be, shall cure the defect or results from a breach of any representation, warranty make the required purchase or covenant made by substitution no later than 90 days after the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty discovery of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any representation or warrantydefect. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee shall reconvey to the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust 2005-Ff5)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller Originator or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, the a Mortgage File or that any document in a Mortgage File is materially inconsistent with the related Mortgage Loan Schedule or of the breach by any the Originator or the Seller of any representation, representation or warranty or covenant under each the Originator Mortgage Loan Purchase Agreement or the Letter Mortgage Loan Purchase Agreement, as applicable, in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan Loan, Prepayment Charge or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee shall promptly notify the Seller and the related Servicer of such defect, missing document or breach and cause such Originator or Seller, as applicable, to deliver such missing document or cure such defect or breach within 90 days from the date the Originator or Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may be, the Servicer and the NIMS Insurer of such defect, missing document or breach and request that, in the case of a defective or missing document, the Seller cure such defect or deliver such missing document within 120 days from the date the Seller was notified of such missing document or defect or, in the case of a beach of a representation or warranty, request the Originator or the Seller, as applicable, cure such breach within 90 days from the date the Originator or the Seller, as the case may be, was notified of such breach. If the Seller does not deliver such missing document or cure such defect or if the Originator or the Seller, as applicable, does not cure such breach in all material respects during such period, the Trustee shall enforce the obligations of such Originator's or the Seller's obligation, as the case may be, under the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as applicable, and cause the Originator or the Seller, as applicable, under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, to repurchase such Mortgage Loan from the Trust Fund at the Purchase Price within 90 days after on or prior to the date on which Determination Date following the expiration of such Originator or the Seller, as applicable, was notified period (subject to Section 2.03(d)) of such missing document, defect or breach, if and to the extent that such Originator or the Seller, as applicable, is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so). The Purchase Price for the repurchased Mortgage Loan shall be deposited in the Distribution Trust Collection Account, and the Trustee, upon receipt of written notice from the Servicer of such deposit, shall release or cause to the Custodian to release to such Originator or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such the Originator or the Seller, as the case may be, any Mortgage Loan released pursuant hereto, hereto and the Trustee shall have no further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement Originator or the Letter AgreementSeller, as applicable, the related Originator, the Seller or the Depositor, as applicablecase may be, may cause such Mortgage Loan to be removed from the Trust Fund (in which case it shall become a Deleted Defective Mortgage Loan) and substitute one or more Qualified Eligible Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c); provided, however, the Originator or the Seller, as applicable, may not substitute an Eligible Substitute Mortgage Loan for any Deleted Mortgage Loan that violates any predatory or abusive lending law. With respect to the representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement that are made to the best of the Originator's or the Seller's knowledge, as applicable, or as to which the Originator or the Seller, as the case may be, has no knowledge, if it is discovered by the Depositor, the Servicer, the NIMS Insurer or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, Prepayment Charge or the interest therein of the Certificateholders then, notwithstanding the Originator's or the Seller's lack of knowledge with respect to the substance of such representation and warranty being inaccurate at the time the representation or warranty was made, such inaccuracy shall be deemed a breach of the applicable representation or warranty. It is understood and agreed that the obligation representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement and the Mortgage Loan Purchase Agreement shall survive delivery of the related Originator, Mortgage Files to the Trustee and the Closing Date and shall inure to the benefit of the Certificateholders notwithstanding any restrictive or qualified endorsement or assignment. It is understood and agreed that the obligations of the Originator and the Seller set forth in this Section 2.03(a) to cure, substitute for or repurchase a Mortgage Loan pursuant to the Originator Mortgage Loan Purchase Agreement or the DepositorMortgage Loan Purchase Agreement, as applicable, and to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall pay the Reimbursement Amount constitute the sole remedy respecting such omission, defect or breach remedies available to the Certificateholders and to the Trustee on their behalf respecting a breach of the Certificateholdersrepresentations and warranties contained in the Mortgage Loan Purchase Agreement. The representations and warranties of the Originator with respect to the Mortgage Loans in the Originator Mortgage Loan Purchase Agreement, which have been assigned to the Trustee hereunder, were made as of the dates specified in the Originator Mortgage Loan Purchase Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Originator under the Originator Mortgage Loan Purchase Agreement and (ii) a representation or warranty of the Seller under the Mortgage Loan Purchase Agreement (other than Seller's representations with respect to predatory and abusive lending laws in Sections 3.01(i), 3.01(ii) and 3.01(iii) of the Mortgage Loan Purchase Agreement), the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's right to enforce the obligations of the Originator under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans (except as otherwise set forth in this paragraph) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Originator in the Originator Mortgage Loan Purchase Agreement, without regard to whether the Originator fulfills its contractual obligations in respect of such representation or warranty. In addition, to the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (x) the Originator's representation with respect to predatory and abusive lending laws in Section 3.02(i) of the Originator Mortgage Loan Purchase Agreement and (y) the Seller's representation with respect to predatory and abusive lending laws in Section 3.01(i), 3.01(ii) or 3.01(iii) of the Mortgage Loan Purchase Agreement, the Originator shall be obligated to pay the Reimbursement Amount relating to such Mortgage Loan, and, to the extent the Originator fails to do so, the Trustee shall be entitled to enforce the Seller's obligation to pay such Reimbursement Amount. In any event, the Reimbursement Amount shall be delivered to the Servicer for deposit into the Trust Collection Account within ten (10) days from the date the Seller was notified by the Trustee of the Reimbursement Amount.
(ib) As promptly as practicable (and no later than Within 90 days) after days of the earlier of discovery by the related Servicer or receipt of notice by the related Servicer of the breach of any representation, warranty or covenant of such the Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(c) Any substitution of Qualified Eligible Substitute Mortgage Loans for Deleted Defective Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which last Business Day that is within two years after the Closing Date for the Trust FundDate. As to any Deleted Defective Mortgage Loan for which an Originator, the Originator or the Seller or the Depositor substitutes a Qualified an Eligible Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, delivering to the Custodian on behalf of the Trustee, Trustee for such Qualified Eligible Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Eligible Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee or the Custodian shall acknowledge receipt for such Qualified Eligible Substitute Mortgage Loan or Loans and, within ten (10) Business Days thereafter, shall review such documents as specified in Section 2.02 and deliver to the Trustee, the Depositor Servicer and the related ServicerNIMS Insurer, with respect to such Qualified Eligible Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee or the Custodian shall deliver to the Depositor Servicer and the related Servicer NIMS Insurer a certification substantially in the form of Exhibit C-2 F-2 hereto with respect to such Qualified Eligible Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Eligible Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund and will be retained by the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on collections and recoveries in respect of such Deleted Defective Mortgage Loan on or before the Due Date in the month Collection Period or Prepayment Period, as applicable, preceding the date of substitution, substitution and the related OriginatorDepositor, the Seller Originator or the DepositorSeller, as the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Defective Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the applicable Mortgage Loan Schedule to reflect the removal of such Deleted Defective Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Eligible Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the TrusteeTrustee and the NIMS Insurer. Upon such substitution, such Qualified Eligible Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and, in the case of a substitution effected by the Originator or the Seller, the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as the case may be, including, in the case of a substitution effected by an Originator, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by Originator or the Seller, all applicable representations and warranties thereof included in the Letter Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, in each as the case may be, as of the date of substitution. For any month in which an Originator, the Originator or the Seller or the Depositor substitutes one or more Qualified Eligible Substitute Mortgage Loans for one or more Deleted Defective Mortgage Loans, the related Servicer will determine the amount (the "Substitution Shortfall Adjustment Amount"), if any, by which the aggregate Purchase Price of all such Deleted Defective Mortgage Loans exceeds the aggregate ofaggregate, as to each such Qualified Eligible Substitute Mortgage Loan, of the Stated Principal Balance principal balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance principal balance at the applicable Net Mortgage Interest Rate, plus all outstanding P&I Advances and Servicing Advances. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller Originator or the DepositorSeller, as the case may be, will deliver or cause to be delivered to the applicable Servicer for deposit in the Trust Collection Account an amount equal to the Substitution Shortfall Adjustment Amount, if any, and the Trustee, upon receipt of the related Qualified Eligible Substitute Mortgage Loan or Loans and certification notice by the applicable Servicer of such deposit, shall release to the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor Originator or the Seller, as the case may be, shall deliver to it and as shall be necessary to vest therein any Deleted Defective Mortgage Loan released pursuant hereto. In addition, in connection with the related substitution of one or more Eligible Substitute Mortgage Loans for one or more Defective Mortgage Loans, in the event the Trust incurs costs or damages arising in connection with a breach of the Originator's representations with respect to predatory or abusive lending laws set forth in Section 3.02(i) of the Originator Mortgage Loan Purchase Agreement, the Depositor Seller shall be required to reimburse the Trust for the Reimbursement Amount pursuant to the Mortgage Loan Purchase Agreement. In addition, the Originator or the Seller, as the case may beapplicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to an Adverse REMIC Event. If such Opinion of Counsel can not be imposed on any delivered, then such substitution may only be effected at such time as the required Opinion of the REMICs, created hereunder, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any REMIC hereunder to fail to qualify as a REMIC at any time that any Certificate is outstandingCounsel can be given.
(d) Upon discovery by the DepositorOriginator, the Seller, a the Servicer, the NIMS Insurer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the related Originator, the Seller Originator or the DepositorSeller, as the case may be applicable, shall repurchase or, subject to the limitations set forth in Section 2.03(c), substitute one or more Qualified Eligible Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall In addition, upon discovery that a Mortgage Loan is defective in a manner that would cause such repurchase or substitution it to be made by (i) a "defective obligation" within the related Originatormeaning of Treasury Regulations relating to REMICs, if the affected Mortgage Loan's status as a non-qualified mortgage is Originator or results from a breach of any representation, warranty or covenant made by the related Originator under the applicable Mortgage Loan Purchase Agreement, (ii) the Seller, if as the affected Mortgage Loan's status as a non-qualified mortgage is case may be, shall cure the defect or results from a breach of any representation, warranty make the required purchase or covenant made by substitution no later than 90 days after the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty discovery of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any representation or warrantydefect. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee shall reconvey to the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (ABFC Asset-Backed Certificates, Series 2004-Ff1)
Repurchase or Substitution. of Mortgage Loans by the OriginatorsOriginator, the Seller or the Depositor; Payment of Prepayment Charges in the event of breach.
(a) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, the a Mortgage File or of the breach by any the Originator or the Seller of any representation, warranty or covenant under each the Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such the Originator or the Seller, as the case may be, as to which such the Originator or the Seller Seller, as the case may be, has no knowledge, without regard to the Originator's or the Seller's 's, as the case may be, lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made), the Trustee (or a Custodian on behalf of the Trustee) shall promptly notify the Originator, the Seller and the related Master Servicer of such defect, missing document or breach and cause such request that the Originator or the Seller, as applicablethe case may be, to deliver such missing document or cure such defect or breach within 90 days from the date the Originator or the Seller, as applicablethe case may be, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by , and if the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may be, does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee Master Servicer (or, in accordance with Section 3.02(b), the Trustee) shall enforce the obligations of such the Originator or the Seller, as applicable, under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, under the Mortgage Loan Purchase Agreement to repurchase such Mortgage Loan from the Trust Fund REMIC I at the Purchase Price within 90 days after the date on which such the Originator or the Seller, as applicablethe case may be, was notified (subject to Section 2.03(d2.03(e)) of such missing document, defect or breach, if and to the extent that such Originator or the Seller, as applicable, is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail is obligated to cure do so under the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do soPurchase Agreement. The Purchase Price for the repurchased Mortgage Loan shall be deposited in the Distribution Collection Account, and the Trustee, upon receipt of written certification from the Master Servicer of such deposit, shall release or cause to the Custodian to release to such Originator or the Seller, as applicablethe case may be, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such the Originator or the Seller, as applicablethe case may be, shall furnish to it and as shall be necessary to vest in such the Originator or the Seller, as the case may be, any Mortgage Loan released pursuant hereto, and the Trustee shall have no further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement Agreement, the Originator or the Letter AgreementSeller, as applicable, the related Originator, the Seller or the Depositor, as applicablecase may be, may cause such Mortgage Loan to be removed from the Trust Fund REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c2.03(d). It is understood and agreed that the obligation of the related Originator, the Seller Originator or the DepositorSeller, as applicablethe case may be, to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy respecting such omission, defect or breach available to the Trustee on behalf of the Certificateholders.
(ib) As promptly as practicable (and no later than Subject to Section 2.03(e), within 90 days) after days of the earlier of discovery by the Depositor or receipt of notice by the Depositor of the breach of any representation or warranty of the Depositor set forth in Section 2.04 with respect to any Mortgage Loan, which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Depositor shall (i) cure such breach in all material respects, (ii) repurchase the Mortgage Loan from REMIC I at the Purchase Price or (iii) remove such Mortgage Loan from REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(d). If any such breach is a breach of any of the representations and warranties included in Section 2.04(a)(iv), and the Depositor is unable to cure such breach, the Depositor shall repurchase or substitute the smallest number of Mortgage Loans as shall be required to make such representation or warranty true and correct. The Purchase Price for any repurchased Mortgage Loan shall be delivered to the Master Servicer for deposit in the Collection Account, and the Trustee, upon receipt of written certification from the Master Servicer of such deposit, shall at the Depositor's direction release to the Depositor the related Mortgage File and shall execute and deliver such instruments of transfer or assignment furnished by the Depositor, in each case without recourse, as the Depositor shall furnish to it and as shall be necessary to vest in the Depositor any Mortgage Loan released pursuant hereto.
(i) Within 90 days of the earlier of discovery by the Master Servicer or receipt of notice by the related Master Servicer of the breach of any representation, warranty or covenant of such the Master Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Master Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a the Master Servicer or receipt of notice by a the Master Servicer of the breach of any representation, warranty or covenant of such the Master Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Master Servicer shall cure such breach in all material respects. If the representation made by the Master Servicer in Section 2.05(vii) is breached, the Master Servicer must pay into the Collection Account the amount of the scheduled Prepayment Charge, less any amount collected and paid by the Master Servicer into the Collection Account; and if the covenant made by the such Master Servicer in Section 2.05(viii) is breached, such the Master Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(cd) Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) ), in the case of the Originator or the Seller, or Section 2.03(b), in the case of the Depositor, must be effected prior to the date which is two years after the Closing Date Startup Day for the Trust Fund. REMIC I. As to any Deleted Mortgage Loan for which an the Originator, the Seller or the Depositor substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by such the Originator, the Seller or the Depositor, as the case may be, delivering to the Trustee (or a Custodian on behalf of the Trustee), for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Amount (as described below), if any, in connection with such substitution. The Trustee (or a Custodian on behalf of the Custodian Trustee) shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, review such documents as specified in Section 2.02 and deliver to the Trustee, the Depositor and the related Master Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee or the Custodian shall deliver to the Depositor and the related Master Servicer a certification substantially in the form of Exhibit C-2 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund REMIC I and will be retained by the related OriginatorDepositor, the Seller Originator or the DepositorSeller, as the case may be. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on such Deleted Mortgage Loan on or before the Due Date in the month of substitution, and the related OriginatorDepositor, the Seller Originator or the DepositorSeller, as the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and, in the case of a substitution effected by the Originator or the Seller, the Mortgage Loan Purchase Agreement, including, in the case of a substitution effected by an Originatorthe Originator or the Seller, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by the Seller, all applicable representations and warranties thereof included in the Letter Agreement, in each case as of the date of substitution. For any month in which an Originatorthe Depositor, the Seller Originator or the Depositor Seller substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the related Master Servicer will determine the amount (the "Substitution Shortfall Amount"), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified Substitute Mortgage Loan, the Stated Scheduled Principal Balance thereof as of the date of substitution, together with one month's interest on such Stated Scheduled Principal Balance at the applicable Net Mortgage Loan Remittance Rate, plus all outstanding P&I Advances and Servicing Advances. On the date of such substitution, which shall be on or prior to the next succeeding Determination DateDepositor, the related Originator, the Seller Originator or the DepositorSeller, as the case may be, will deliver or cause to be delivered to the applicable Master Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall Amount, if any, and the Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or Loans and certification by the applicable Master Servicer of such deposit, shall release to the related OriginatorDepositor, the Depositor Originator or the Seller, as the case may be, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related OriginatorDepositor, the Depositor Originator or the Seller, as the case may be, shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto. In addition, the related OriginatorDepositor, the Depositor Originator or the Seller, as the case may be, shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereundereither REMIC I or REMIC II, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1) of the Code or on "contributions after the startup date" under Section 860G(d)(1) of the Code, or (b) any either REMIC hereunder I or REMIC II to fail to qualify as a REMIC at any time that any Certificate is outstanding.
(de) Upon discovery by the Depositor, the Originator, the Seller, a Servicer, the Master Servicer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the related Originator, the Seller or the Depositor, as the case may be Depositor shall repurchase or, subject to the limitations set forth in Section 2.03(c2.03(d), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall cause such Such repurchase or substitution to shall be made by (i) the related OriginatorOriginator or the Seller, as the case may be, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the related Originator or the Seller under the applicable Mortgage Loan Purchase Agreement, or (ii) the Seller, if the affected Mortgage Loan's status as a non-qualified mortgage is or results from a breach of any representation, warranty or covenant made by the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty of the Depositor set forth in Section 2.04, 2.04 or if its the status as a non-qualified mortgage is a breach of any no representation or warranty. Any such repurchase or substitution shall be made in the same manner as set forth in Section Sections 2.03(a), if made by the Originator or the Seller, or 2.03(b), if made by the Depositor. The Trustee shall reconvey to the related OriginatorDepositor, the Seller Originator or the DepositorSeller, as the case may be, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Inc Asset Bk Cert Ser 1998-Aq1)
Repurchase or Substitution. of Mortgage Loans by the Originators, the Seller Originator or the Depositor; Payment of Prepayment Charges in the event of breachSeller.
(a) Upon discovery or receipt of written notice of any materially defective document in, or that a document is missing from, the a Mortgage File or of the breach by any the Originator or the Seller of any representation, representation or warranty or covenant under each the Originator Mortgage Loan Purchase Agreement or the Letter Mortgage Loan Purchase Agreement, as applicable, in respect of any Mortgage Loan which materially adversely affects the value of such Mortgage Loan Loan, Prepayment Charge or the interest therein of the Certificateholders (in the case of any such representation or warranty made in each Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable, to the knowledge or the best of knowledge of such Originator or the Seller, as to which such Originator or the Seller has no knowledge, without regard to the Originator's or the Seller's lack of knowledge with respect to the substance of such representation or warranty being inaccurate at the time it was made)Certificateholders, the Trustee shall promptly notify the Seller and the related Servicer of such defect, missing document or breach and cause such Originator or Seller, as applicable, to deliver such missing document or cure such defect or breach within 90 days from the date the Originator or Seller, as applicable, was notified of such missing document, defect or breach; provided that such missing document was not previously delivered by the Originator under the applicable Mortgage Loan Purchase Agreement. If such Originator or the Seller, as the case may be, the Servicer and the NIMS Insurer of such defect, missing document or breach and request that, in the case of a defective or missing document, the Seller cure such defect or deliver such missing document within 120 days from the date the Seller was notified of such missing document or defect or, in the case of a beach of a representation or warranty, request the Originator or the Seller, as applicable, cure such breach within 90 days from the date the Originator or the Seller, as the case may be, was notified of such breach. Notwithstanding the foregoing, any breach of a Deemed Material and Adverse Representation with respect to a Group 1 Mortgage Loan or Group 2 Mortgage Loan shall automatically be deemed to materially and adversely affect such Mortgage Loan or the interest of the related Certificateholders therein. If the Seller does not deliver such missing document or cure such defect or if the Originator or the Seller, as applicable, does not cure such breach in all material respects during such period, the Trustee shall enforce the obligations of such Originator's or the Seller's obligation, as the case may be, under the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as applicable, and cause the Originator or the Seller, as applicable, under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as the case may be, to repurchase such Mortgage Loan from the Trust Fund at the Purchase Price within 90 days after on or prior to the date on which Determination Date following the expiration of such Originator or the Seller, as applicable, was notified period (subject to Section 2.03(d)) of such missing document, defect or breach, if and to the extent that such Originator or the Seller, as applicable, is obligated to do so under the related Mortgage Loan Purchase Agreement or the Letter Agreement, as applicable. In the event that the Originator or the Seller, as the case may be, shall fail to cure the applicable breach or repurchase a Mortgage Loan in accordance with the preceding sentence, the Depositor shall do so). The Purchase Price for the repurchased Mortgage Loan shall be deposited in the Distribution Collection Account, and the Trustee, upon receipt of written notice from the Servicer of such deposit, shall release or cause to the Custodian to release to such Originator or the Seller, as applicable, the related Mortgage File and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as such the Originator or the Seller, as applicable, shall furnish to it and as shall be necessary to vest in such the Originator or the Seller, as the case may be, any Mortgage Loan released pursuant hereto, hereto and the Trustee shall have no further responsibility with regard to such Mortgage File. In lieu of repurchasing any such Mortgage Loan as provided above, if so provided in the related Mortgage Loan Purchase Agreement Originator or the Letter AgreementSeller, as applicable, the related Originator, the Seller or the Depositor, as applicablecase may be, may cause such Mortgage Loan to be removed from the Trust Fund (in which case it shall become a Deleted Defective Mortgage Loan) and substitute one or more Qualified Eligible Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(c). With respect to the representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement that are made to the best of the Originator's or the Seller's knowledge, as applicable, or as to which the Originator or the Seller, as the case may be, has no knowledge, if it is discovered by the Depositor, the Servicer, the NIMS Insurer or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, Prepayment Charge or the interest therein of the Certificateholders then, notwithstanding the Originator's or the Seller's lack of knowledge with respect to the substance of such representation and warranty being inaccurate at the time the representation or warranty was made, such inaccuracy shall be deemed a breach of the applicable representation or warranty. It is understood and agreed that the obligation representations and warranties set forth in the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement shall survive delivery of the related Originator, Mortgage Files to the Trustee and the Closing Date and shall inure to the benefit of the Certificateholders notwithstanding any restrictive or qualified endorsement or assignment. It is understood and agreed that the obligations of the Originator and the Seller set forth in this Section 2.03(a) to cure, substitute for or repurchase a Mortgage Loan pursuant to the Originator Mortgage Loan Purchase Agreement or the DepositorMortgage Loan Purchase Agreement, as applicable, and to cure or to repurchase (or to substitute for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall pay the Reimbursement Amount constitute the sole remedy respecting such omission, defect or breach remedies available to the Certificateholders and to the Trustee on their behalf respecting a breach of the Certificateholdersrepresentations and warranties contained in the Originator Mortgage Loan Purchase Agreement and Mortgage Loan Purchase Agreement. The representations and warranties of the Originator with respect to the Mortgage Loans in the Originator Mortgage Loan Purchase Agreement, which have been assigned to the Trustee hereunder, were made as of the dates specified in the Originator Mortgage Loan Purchase Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the Originator under the Originator Mortgage Loan Purchase Agreement and (ii) a representation or warranty of the Seller under the Mortgage Loan Purchase Agreement (other than Seller's representations with respect to predatory and abusive lending laws in Section 3.01(k) and 3.01(s) of the Mortgage Loan Purchase Agreement), the only right or remedy of the Trustee or of any Certificateholder shall be the Trustee's right to enforce the obligations of the Originator under any applicable representation or warranty made by it. The Trustee acknowledges that the Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Mortgage Loans (except as otherwise set forth in this paragraph) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the Originator in the Originator Mortgage Loan Purchase Agreement, without regard to whether the Originator fulfills its contractual obligations in respect of such representation or warranty. In addition, to the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (x) the Option One Mortgage Corporation's representation with respect to predatory and abusive lending laws in Section 3.03(i) or 3.03(ddd) of the Originator Mortgage Loan Purchase Agreement and (y) the Seller's representation with respect to predatory and abusive lending laws in Section 3.01(k) or 3.01(s) of the Mortgage Loan Purchase Agreement, the Originator shall be obligated to pay the Reimbursement Amount relating to such Mortgage Loan, and, to the extent the Originator fails to do so, the Trustee shall be entitled to enforce the Seller's obligation to pay such Reimbursement Amount. In any event, the Reimbursement Amount shall be delivered to the Servicer for deposit into the Collection Account within 10 days from the date the Seller was notified by the Trustee of the Reimbursement Amount.
(ib) As promptly as practicable (and no later than Within 90 days) after days of the earlier of discovery by the related Servicer or receipt of notice by the related Servicer of the breach of any representation, warranty or covenant of such the Servicer set forth in Section 2.05 2.04 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, the related Servicer shall cure such breach in all material respects.
(ii) Within 90 days of the earlier of discovery by a Servicer or receipt of notice by a Servicer of the breach of any representation, warranty or covenant of such Servicer set forth in Section 2.05 which materially and adversely affects the interests of the Holders of the Class P Certificates to any Prepayment Charge, the related Servicer shall cure such breach in all material respects. If the covenant made by the such Servicer in Section 2.05(viii) is breached, such Servicer must pay into the Collection Account the amount of the waived Prepayment Charge.
(c) Any substitution of Qualified Eligible Substitute Mortgage Loans for Deleted Defective Mortgage Loans made pursuant to Section 2.03(a) must be effected prior to the date which last Business Day that is within two years after the Closing Date for the Trust FundDate. As to any Deleted Defective Mortgage Loan for which an Originator, Originator or the Seller or the Depositor substitutes a Qualified an Eligible Substitute Mortgage Loan or Loans, such substitution shall be effected by such Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, delivering to the Custodian on behalf of the Trustee, Trustee for such Qualified Eligible Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01, together with an Officers' Certificate providing that each such Qualified Eligible Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Shortfall Adjustment Amount (as described below), if any, in connection with such substitution. The Trustee or the Custodian shall acknowledge receipt for such Qualified Eligible Substitute Mortgage Loan or Loans and, within ten Business Days thereafter, shall review such documents as specified in Section 2.02 and deliver to the Trustee, the Depositor Servicer and the related ServicerNIMS Insurer, with respect to such Qualified Eligible Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit C-1F-1, with any applicable exceptions noted thereon. Within one year of the date of substitution, the Trustee or the Custodian shall deliver to the Depositor Servicer and the related Servicer NIMS Insurer a certification substantially in the form of Exhibit C-2 F-2 hereto with respect to such Qualified Eligible Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon. Monthly Payments due with respect to Qualified Eligible Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund and will be retained by the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable. For the month of substitution, distributions to Certificateholders will reflect the Monthly Payment due on collections and recoveries in respect of such Deleted Defective Mortgage Loan on or before the Due Date in the month Collection Period or Prepayment Period, as applicable, preceding the date of substitution, substitution and the related OriginatorDepositor, the Seller Originator or the DepositorSeller, as the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Defective Mortgage Loan. The Depositor shall give or cause to be given written notice to the Certificateholders and the NIMS Insurer that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Defective Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Eligible Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the TrusteeTrustee and the NIMS Insurer. Upon such substitution, such Qualified Eligible Substitute Mortgage Loan or Loans shall constitute part of the Mortgage Pool and shall be subject in all respects to the terms of this Agreement and, in the case of a substitution effected by the Originator or the Seller, the Originator Mortgage Loan Purchase Agreement or the Mortgage Loan Purchase Agreement, as the case may be, including, in the case of a substitution effected by an Originator, all applicable representations and warranties thereof included in the related Mortgage Loan Purchase Agreement, and in the case of a substitution effected by the Depositor, all applicable representations and warranties thereof set forth in Section 2.04, and in the case of a substitution effected by Originator or the Seller, all applicable representations and warranties thereof included in the Letter Originator Mortgage Loan Purchase Agreement or Mortgage Loan Purchase Agreement, in each as the case may be, as of the date of substitution. For any month in which an Originator, the Originator or the Seller or the Depositor substitutes one or more Qualified Eligible Substitute Mortgage Loans for one or more Deleted Defective Mortgage Loans, the related Servicer will determine the amount (the "Substitution Shortfall Adjustment Amount"), if any, by which the aggregate Purchase Price of all such Deleted Defective Mortgage Loans exceeds the aggregate ofaggregate, as to each such Qualified Eligible Substitute Mortgage Loan, of the Stated Principal Balance principal balance thereof as of the date of substitution, together with one month's interest on such Stated Principal Balance principal balance at the applicable Net Mortgage Interest Rate, plus all outstanding P&I Advances and Servicing Advances. On the date of such substitution, which shall be on or prior to the next succeeding Determination Date, the related Originator, the Seller Originator or the DepositorSeller, as the case may be, will deliver or cause to be delivered to the applicable Servicer for deposit in the Collection Account an amount equal to the Substitution Shortfall Adjustment Amount, if any, and the Trustee, upon receipt of the related Qualified Eligible Substitute Mortgage Loan or Loans and certification notice by the applicable Servicer of such deposit, shall release to the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, the related Mortgage File or Files and the Trustee shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the related Originator, the Depositor Originator or the Seller, as the case may be, shall deliver to it and as shall be necessary to vest therein any Deleted Defective Mortgage Loan released pursuant hereto. In addition, the related Originator, the Depositor Originator or the Seller, as the case may beapplicable, shall obtain at its own expense and deliver to the Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such substitution will not cause (a) any federal tax to be imposed on any of the REMICs, created hereunderTrust Fund, including without limitation, any federal tax imposed on "prohibited transactions" under Section 860F(a)(1860F(a)(l) of the Code or on "contributions after the startup date" under Section 860G(d)(1860G(d)(l) of the Code, or (b) any REMIC 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.
(d) Upon discovery by the DepositorOriginator, the Seller, a the Servicer, the NIMS Insurer or the Trustee that any Mortgage Loan does not constitute a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the related Originator, the Seller Originator or the DepositorSeller, as the case may be applicable, shall repurchase or, subject to the limitations set forth in Section 2.03(c), substitute one or more Qualified Eligible Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. The Depositor shall In addition, upon discovery that a Mortgage Loan is defective in a manner that would cause such repurchase or substitution it to be made by (i) a "defective obligation" within the related Originatormeaning of Treasury Regulations relating to REMICs, if the affected Mortgage Loan's status as a non-qualified mortgage is Originator or results from a breach of any representation, warranty or covenant made by the related Originator under the applicable Mortgage Loan Purchase Agreement, (ii) the Seller, if as the affected Mortgage Loan's status as a non-qualified mortgage is case may be, shall cure the defect or results from a breach of any representation, warranty make the required purchase or covenant made by substitution no later than 90 days after the Seller under the Letter Agreement, or (iii) the Depositor, if the affected Mortgage Loan's status as a non-qualified mortgage is a breach of any representation or warranty discovery of the Depositor set forth in Section 2.04, or if its status as a non-qualified mortgage is a breach of any representation or warrantydefect. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(a). The Trustee shall reconvey to the related Originator, the Seller Originator or the DepositorSeller, as the case may beapplicable, the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.
(e) If a Mortgagor is forty-five (45) days or more delinquent with respect to a Mortgage Loan's first Monthly Payment that was due after the transfer of such Mortgage Loan to the Seller under the Originator Mortgage Loan Purchase Agreement, the Trustee shall, upon direction of the Depositor, enforce the Originator's obligation under Section 3.05 of the Originator Mortgage Loan Purchase Agreement to repurchase such Mortgage Loan (an "EPD Loan") at the purchase price set forth in the Originator Mortgage Loan Purchase Agreement; provided, however, the Depositor shall not direct the Trustee to enforce the Originator's obligation to repurchase any EPD Loan pursuant to this paragraph that was originated more than six months prior to its purchase by the Seller from the Originator unless the sum of (i) the repurchase price of such EPD Loan and all other EPD Loans previously repurchased that were originated more than six months prior to their purchase by the Seller from the Originator and (ii) the fair market value of the Subordinate Certificates retained by the Seller or its Affiliates (other than Banc of America Securities LLC) would not exceed 10% of the Cut-off Date Principal Balance. To the extent that the purchase price of any EPD Loan purchased by the Originator pursuant to this Section 2.03(e) exceeds the Purchase Price for such Mortgage Loan, the Trustee shall remit such excess to the Seller.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (ABFC 2006-Opt3 Trust)