Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately 94.82% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 5.04% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 0.14% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately 98.93% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.08% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately 82.32% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately 17.69% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately 34.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual Mort Sec Corp Wamu Series 2003-Ar11)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~96.35% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~3.63% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and ~~approximately 0.14~~0.02% ~~(by Principal Balance)~~ of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.59% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.41% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (~~xxviii~~xxvi) Approximately ~~82.32~~85.09% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~14.91% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~44.25% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (~~xxx~~xxviii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxix) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points (except for one mortgage loan for which the cap on the first Adjustment Date is six percentage points) on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.in

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass Through Cert Ser 2002-Ar19)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section ~~2.04~~ 2.01 herein, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan ~~that~~ which is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~95.66% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~4.05% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.28% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable)~~Note; (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~97.99% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~2.01% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~78.19% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~21.80% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~69.59% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs;; and (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass Through Certificates Series 2001-Ar4)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage ~~Loan that is not a Cooperative~~ Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~98.30% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~1.43% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.27% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable)~~Note; (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~97.78% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~2.22% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (~~xxviii~~xxvi) Approximately ~~82.32~~83.82% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~16.18% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~84.33% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (~~xxx~~xxviii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxix) With respect to each Mortgage Loan, the Periodic Cap shall equal ~~five percentage points~~ 5% on the first Adjustment Date and shall equal ~~two percentage points~~ 2% on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.in

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual Mor Sec Corp Mor Pa THR Cer Ser 2002-Ar1)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off ~~Date~~ Date, unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of ~~the Cut-Off Date~~ its respective origination date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/~~Xxxxxxx~~ Freddie Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac approval, or are approvable by Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~95.40% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~3.08% (by Principal Balance) of the Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors, approximately 1.52% (by Principal Balance) of the Mortgage Loans will be secured by Group I Properties which were non-owner occupied properties, approximately 95.32% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 4.62% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.06% (by Principal Balance) of the Mortgage Loans will be secured by ~~Mortgaged~~ Group II Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~84.17% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~2.22% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 9590%, approximately 13.61% ~~and no Mortgage~~ Group I Loan had a current Loan-to-Value Ratio greater than 9590%~~; (xxviii) Approximately 82.32~~, approximately 98.41% (by Principal Balance) of the ~~Mortgage~~ Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.13% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 90% and approximately 0.46% Group II Loan had a current Loan-to-Value Ratio greater than 90%; (xxvi) Approximately 76.41% (by Principal Balance) of the Group I Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings~~; and~~ , approximately ~~17.69~~23.59% (by Principal Balance) of the ~~Mortgage~~ Group I Loans were originated for the purpose of purchasing the Mortgaged Property, approximately 65.69% (by Principal Balance) of the Group II Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings and approximately 34.31% (by Principal Balance) of the Group II Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~25.62% and 22.24% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and Group II Loans, respectively, were originated under full documentation programs; (~~xxx~~xxviii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1);; and (~~xxxi~~xxix) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxx) No Mortgage Loan is a High Cost Loan or Covered Loan (as such terms are defined in the Standard & Poor's LEVELS® Glossary in effect on the Closing Date, which is now Version 5.6b Revised, Appendix E, applicable portions of which are attached hereto as Exhibit C) and no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act; (xxxi) With respect to each ~~Mortgage~~ Cooperative Loan, the ~~Periodic Cap shall equal five percentage points on~~ Cooperative Stock that is pledged as security for the ~~first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It~~ Cooperative Loan is ~~understood and agreed that the representations and warranties set forth~~ held by a person as a tenant-stockholder (as defined in ~~this~~ Section ~~2.08 shall survive delivery~~ 216 of the ~~respective Mortgage Files to the Trustee or the Custodian,~~ Code) in a cooperative housing corporation (as ~~the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any~~ defined in Section 216 of the ~~Company~~Code); (xxxii) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the ~~Master Servicer,~~ enforcement of creditors’ rights generally and principles of equity) perfected first lien and security interest in the ~~Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of~~ related Cooperative Stock securing the related Mortgage ~~Loans or the interests~~ Note, subject only to (a) liens of the ~~Trust in~~ Cooperative for unpaid assessments representing the ~~related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach~~ Mortgagor’s pro rata share of the ~~representation set forth in clause~~ Cooperative’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject and (~~xxxi~~b) ~~of this Section 2.08 shall be deemed~~ other matters to which like collateral is commonly subject which do not materially ~~and adversely affect~~ interfere with the ~~value~~ benefits of the ~~related Mortgage Loans or~~ security intended to be provided by the ~~interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase,~~ Security Agreement; (xxxiii) No Group I Loan is subject to the ~~limitations set forth~~ Home Ownership and Equity Protection Act of 1994 or 12 C.F.R. Section 226.32 (Regulation Z), a “high-cost” loan or a “predatory” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without limiting the generality of the foregoing, is a “covered” loan under the laws of the states of California, Colorado, New Jersey (excluding home loans that were originated between November 26, 2003 and July 7, 2004 defined as “covered home loans” pursuant to clause (1) of the definition of ~~"Purchase Price," or substitute for~~ that term in the ~~affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust~~New Jersey Ownership Security Act of 2002), unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Washington, D.C. (excluding home loans defined under Section ~~860G(a)(4~~7(B) of the ~~Code. Such substitution shall be made~~ Home Loan Protection Act of 2002), or Ohio; (xxxiv) No Group I Loan is secured by a Mortgaged Property located in the ~~manner~~ State of Georgia which was originated during the period commencing on October 1, 2002 and ~~within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price~~ending on March 7, ~~if applicable, but shall not be subject~~ 2003; (xxxv) No proceeds of a Group I Loan have been used to ~~the time limits, set forth in Section 2.07. It is understood and agreed that the obligation~~ finance any single‑premium credit insurance policy; (xxxvi) None of the ~~Company~~ Group I Loans imposes a prepayment penalty term in excess of three years from the date of origination of such Mortgage Loan; (xxxvii) With respect to ~~provide such substitution or~~ each Group I Loan, all required information regarding each Mortgagor’s credit file, including favorable and unfavorable information, has been furnished to ~~make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired~~ credit reporting agencies in ~~respect thereof as to which a breach has occurred and is continuing shall constitute~~ compliance with the ~~sole remedy respecting such breach available to the Holders~~ provisions of the ~~REMIC I Regular Interests~~ Fair Credit Reporting Act and the ~~Class R-1 Residual Interest~~ applicable implementing regulations; (xxxviii) For each Group I Loan, the Servicer will fully furnish, in accordance with the Fair Credit Reporting Act and its implementing regulations, accurate and complete information on its borrower credit files to Equifax, Experian, Trans Union Credit Information Company and Innovis Data Solutions (or their successors), on a monthly basis; and (xxxix) No Group I Loan requires the ~~Trustee on behalf~~ Mortgagor to submit to arbitration to resolve any dispute arising out of ~~the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest~~or relating in any way to such Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (WaMu Mortgage Pass-Through Certificates, Series 2005-Ar6)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) ~~None~~ Except for one of the Group I Loans, none of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~98.65% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~0.92% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.43% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; approximately 96.97% (by Principal Balance) of the Group II Loans will be secured by owner occupied ~~properties~~Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.75% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 1.28% (by Principal Balance) of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; and approximately 99.22% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 0.45% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 0.34% (by Principal Balance) of the Group III Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable)~~Note; (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~97.77% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~2.23% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no ~~Mortgage~~ Group I Loan had a current Loan-to-Value Ratio greater than 95%; approximately 99.28% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 0.72% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group II Loan had a current Loan-to-Value Ratio greater than 95%; and approximately 98.99% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.01% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group III Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~79.91% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, approximately 92.17% (by Principal Balance) of the Group II Loans and approximately 70.37% (by Principal Balance) of the Group III Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~20.09% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, approximately 7.83% (by Principal Balance) of the Group II Loans, and approximately 29.64% (by Principal Balance) of the Group III Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~90.70%, 92.46% and 78.83% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, Group II Loans and Group III Loans, respectively, were originated under full documentation programs;; and (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Pass Through Certificates Series 2002-Ms2)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section ~~2.04~~ 2.01 herein, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan ~~that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained 104 in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage ~~Loan that is not a Cooperative~~ Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the 105 Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~98.27% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~1.62% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.11% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; approximately 96.01% (by Principal Balance) of the Group II Loans will be secured by owner occupied ~~properties~~Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 3.71% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged 106 Properties which were second or vacation homes of the Mortgagors and approximately 0.28% (by Principal Balance) of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 97.20% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.22% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 1.58% (by Principal Balance) of the Group III Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 98.19% (by Principal Balance) of the Group IV Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.81% (by Principal Balance) of the Group IV Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and none of the Group IV Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; and approximately 97.05% (by Principal Balance) of the Group V Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 2.06% (by Principal Balance) of the Group V Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 0.89% (by Principal Balance) of the Group V Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable)~~Note; (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~97.42% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~2.58% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 107 80% but less than or equal to 95% and no Group I Loan had a current Loan-to-Value Ratio greater than 95%; approximately 97.48% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 2.53% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no ~~Mortgage~~ Group II Loan had a current Loan-to-Value Ratio greater than 95%; approximately 97.57% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 2.43% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group III Loan had a current Loan-to-Value Ratio greater than 95%; approximately 95.84% (by Principal Balance) of the Group IV Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 4.16% (by Principal Balance) of the Group IV Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group IV Loan had a current Loan-to-Value Ratio greater than 95%; and approximately 95.51% (by Principal Balance) of the Group V Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 4.50% (by Principal Balance) of the Group V Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group V Loan had a current Loan-to-Value Ratio greater than 95%; (~~xxviii~~xxvi) Approximately ~~82.32~~61.05% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, approximately 77.78% (by Principal Balance) of the Group II Loans; approximately 63.70% (by Principal Balance) of the Group III Loans; approximately 60.27% (by Principal Balance) of the Group IV Loans and approximately 62.35% (by Principal Balance) of the Group V Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~38.96% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, approximately 22.22% (by Principal Balance) of the Group II Loans, approximately 36.30% (by Principal Balance) of the Group III Loans, approximately 39.73% (by Principal Balance) of the Group IV Loans and approximately 37.65% (by Principal Balance) of the Group V Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~91.08%, 84.90%, 77.84%, 93.70% and 96.10% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, Group II Loans, Group III Loans, Group IV Loans and Group V Loans, respectively, were originated under full documentation programs;; and (~~xxx~~xxviii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section ~~2.08~~ 2.03 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the ~~Trust~~ Certificateholders in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its 108 receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the ~~Trust~~Trustee, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel ~~addressed to the Trust and the Trustee~~ reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section ~~2.07~~2.02. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section ~~2.07~~2.02. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual MSC Mortgage Pass Thro Cert Ser 2001-Ms14)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section ~~2.04~~ 2.01 herein, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan ~~that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage ~~Loan that is not a Cooperative~~ Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~93.25% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~6.19% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.55% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable)~~Note; (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~97.31% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~2.68% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (~~xxviii~~xxvi) Approximately ~~82.32~~63.31% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~36.70% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~86.97% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs;; and (~~xxx~~xxviii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section ~~2.08~~ 2.03 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the ~~Trust~~ Certificateholders in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the ~~Trust~~Trustee, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel ~~addressed to the Trust and the Trustee~~ reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.the

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass Through Certificates Series 2001-Ar2)

Representations and Warranties of the Company Concerning the Mortgage Loans. ~~With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the~~ The Company hereby represents and warrants to the ~~Trust that as of the Cut-Off Date unless otherwise indicated~~Trustee that: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, other than with respect to Cooperative Loans, each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple ~~or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate~~ in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) ~~Immediately~~ As of the Closing Date, the Company had good title to, and was the sole owner of, each Mortgage Loan free and clear of any encumbrance or lien, and immediately upon the transfer and assignment ~~contemplated herein~~herein contemplated, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (~~i.e.~~I.E., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan ~~that is not a~~ (except the Cooperative ~~Loan~~ Loans) is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the Closing Date, is acceptable to FNMA or FHLMC, and has been issued by, and is the valid and binding obligation of, a title insurer ~~which, as of the origination date of such Mortgage Loan, was~~ acceptable to FNMA or FHLMC and qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and ~~inures~~ will be in full force and effect and inure to the benefit of the Mortgage Trust Certificateholders and Class R-1 Certificateholders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) ~~Each~~ As of the Closing Date, each Mortgage Loan ~~with~~ which had a Loan-to-Value Ratio as at the time of the ~~Cut-Off Date~~ origination of the Mortgage Loan in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect, except for any Mortgage Loan for which the outstanding Principal Balance thereof at any time subsequent to origination was 80% or less of the then current value of the related Mortgaged Property (as determined by an appraisal obtained subsequent to origination); (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the ~~Company, the Master Servicer~~ Company or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating ~~Agencies~~Agency; (xiv) Each Mortgage ~~(exclusive of any riders thereto)~~ was documented by appropriate ~~Xxxxxx Xxx~~FNMA/~~Xxxxxxx Mac~~ FHLMC mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, other than with respect to a Cooperative Loan, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a ~~one-~~ one-to four-family dwelling unit, including units in a duplex~~, triplex, fourplex~~, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met ~~the applicable Underwriting Standards~~FNMA or FHLMC requirements, are located in a condominium or planned unit development projects which have received ~~Xxxxxx Mae~~ FNMA or ~~Xxxxxxx Mac~~ FHLMC approval, or are approvable by ~~Xxxxxx Mae~~ FNMA or ~~Xxxxxxx Mac or have otherwise been approved by the Company~~FHLMC; (xviii) None of the Mortgage Loans ~~are~~ is a Buydown ~~Loans~~Loan; (xix) ~~Based~~ As of the Cut-Off Date, all but approximately 1.4% (by Principal Balance) of the Mortgage Loans will be secured by owner-occupied Mortgaged Properties which are the primary residences of the related Mortgagors, based solely on representations of the Mortgagors obtained at the origination of the related Mortgage ~~Loans,~~ Loans and approximately ~~94.82~~1.4% (by Principal Balance) of the Mortgage Loans will be secured by ~~owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 5.04% (by Principal Balance) of the Mortgage Loans will be secured by owner~~ owner-occupied Mortgaged Properties which were second or vacation homes of the ~~Mortgagors~~ Mortgagors, based solely on such representations, and ~~approximately 0.14% (by Principal Balance)~~ none of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors, based solely on such representations; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to ~~Xxxxxx Mae~~ FNMA or ~~Xxxxxxx Mac~~FHLMC; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) The information in the Current Report on Form 8-K prepared by the Company in connection with the Mortgage Loans is correct in every material respect; (xxiii) All of the Mortgage Loans have due-on-sale clauses; by the terms of the Mortgage Notes, however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (~~xxiii~~xxiv) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (~~xxiv~~xxv) With respect to ~~each~~ a Mortgage Loan that is a Cooperative Loan, the Cooperative Stock that is pledged as security for the ~~Cooperative~~ Mortgage Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (~~xxv~~xxvi) Each Cooperative Loan is secured by a valid, subsisting and enforceable ~~(except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity)~~ perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (~~xxvi~~xxvii) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable);~~Note; and (~~xxvii~~xxviii) ~~Based upon an appraisal~~ As of the ~~Mortgaged Property securing each~~ date of origination, no Mortgage ~~Loan, approximately 98.93% (by Principal Balance) of the Mortgage Loans~~ Loan had a ~~current~~ Loan-to-Value Ratio ~~less than or equal to 80~~in excess of 125%, approximately 1.08% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately 82.32% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately 17.69% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately 34.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (PNC Mortgage Securities Corp)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the PNC Mortgage Loans provided for in Section ~~2.04 herein~~2.01 herein and the conveyance of the Clipper Mortgage Loans provided for in the Clipper Loan Sale Agreement, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished~~; (ii)~~ ; As of the Closing Date, each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage~~; (iii)~~ ; Immediately upon the transfer and assignment contemplated ~~herein~~herein and in the Clipper Loan Sale Agreement, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each PNC Mortgage Loan and Clipper Mortgage Loan, respectively, free and clear of any encumbrance or lien (other than any lien under this Agreement)~~; (iv)~~ ; As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days~~; (v)~~ ; As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property~~; (vi)~~ ; As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor~~; (vii)~~ ; As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted~~; (viii)~~ ; Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender; (ix)~~ ; Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company~~; (x)~~ ; As of the Closing Date, each Mortgage ~~Loan that is not a Cooperative~~ Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to Faxxxx Xax xr Frxxxxx Xac, and has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was acceptable to Faxxxx Xae or Frxxxxx Xac and qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and ~~inures~~ will be in full force and effect and inure to the benefit of the ~~Trust~~ Certificateholders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; ; All of the Mortgage Loans (xiother than the Additional Collateral Loans) ~~Each Mortgage Loan~~ with a Loan-to-Value ~~Ratio~~ Ratios as of the Cut-Off Date in excess of 80% ~~was~~ were covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect~~; (xii)~~ ; As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer~~; (xiii)~~ ; As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies~~; (xiv)~~ ; Each Mortgage (exclusive of any riders thereto) was documented by appropriate ~~Xxxxxx Xxx~~Faxxxx Xae/~~Xxxxxxx Mac~~ Frxxxxx Xac mortgage instruments in effect at the time of origination, or other instruments approved by the Company~~; (xv)~~ ; As of the Closing Date, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex, ~~triplex, fourplex,~~ condominium project, townhouse, a planned unit development or a de minimis planned unit development~~; (xvi)~~ ; As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity~~; (xvii)~~ ; As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met ~~the applicable Underwriting Standards~~Faxxxx Xae or Frxxxxx Xac requirements, are located in a condominium or planned unit development projects which have received ~~Xxxxxx Mae~~ Faxxxx Xae or ~~Xxxxxxx Mac~~ Frxxxxx Xac approval, or are approvable by ~~Xxxxxx Mae~~ Faxxxx Xae or ~~Xxxxxxx Mac~~ Frxxxxx Xac or have otherwise been approved by the Company~~; (xviii)~~ ; None of the Mortgage Loans ~~are~~ is a Buydown ~~Loans; (xix)~~ Loan; Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~95.25% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~3.13% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~1.61% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties; (xx)~~ investor properties of the related Mortgagors; Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to ~~Xxxxxx Mae~~ Faxxxx Xae or ~~Xxxxxxx Mac; (xxi)~~ Frxxxxx Xac; The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards~~; (xxii)~~ ; All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note; (xxiii)~~ law; The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) ; With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable); (xxvii)~~ Note; Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~87.03% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~10.16% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no approximately 2.82% (by Principal Balance) of the Mortgage ~~Loan~~ Loans had a current Loan-to-Value Ratio greater than 95%~~; (xxviii)~~ ; Approximately ~~82.32~~30.14% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~69.87% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property~~; (xxix)~~ ; Not less than approximately ~~34.34~~64.80% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs~~; (xxx)~~ ; Each Additional Collateral Loans is covered by a Surety Bond; Each Additional Collateral Loan is secured solely by the related Mortgaged Property and by a securities account owned by the related Mortgagor or a guarantor; and Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (PNC Mortgage Sec Corp Mort Pass THR Cert Ser 2000-5)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage ~~Loan that is not a Cooperative~~ Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan ~~that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~98.38% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~1.43% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.19% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; and approximately 95.04% (by Principal Balance) of the Group II Loans will be secured by owner occupied ~~properties~~Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 2.73% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 2.23% (by Principal Balance) of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable)~~Note; (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~96.87% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~3.12% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no ~~Mortgage~~ Group I Loan had a current Loan-to-Value Ratio greater than 95%; and approximately 99.33% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 0.67% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group II Loan had a current Loan-to-Value Ratio greater than 95%; (~~xxviii~~xxvi) Approximately ~~82.32~~79.85% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and approximately 88.81% (by Principal Balance) of the Group II Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~20.14% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and approximately 11.19% (by Principal Balance) of the Group II Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~89.23% and 84.44% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and Group II Loans, respectively, were originated under full documentation programs;; and (~~xxx~~xxviii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual Mort Sec Corp Mort Pas THR Cer Se 2002-Ms3)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan ~~that is not a Cooperative Loan~~ is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan ~~that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~98.89% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~1.01% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and none of the Group I Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; and approximately 97.27% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 2.67% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.06% ~~(by Principal Balance)~~ of the ~~Mortgage~~ Group II Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, all of the Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%; and approximately ~~98.93~~99.61% (by Principal Balance) of the ~~Mortgage~~ Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.39% (by Principal Balance) of the ~~Mortgage~~ Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no ~~Mortgage~~ Group II Loan had a current Loan-to-Value Ratio greater than 95%; (~~xxviii~~xxvi) Approximately ~~82.32~~82.05% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and approximately 94.87% (by Principal Balance) of the Group II Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~17.96% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and approximately 5.13% (by Principal Balance) of the Group II Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~91.30% and 83.15% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and Group II Loans, respectively, were originated under full documentation programs; (~~xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi~~xxviii) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxix) ~~With respect to each~~ Each Mortgage ~~Loan,~~ Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the ~~Periodic Cap shall equal five percentage points on the first Adjustment Date~~ Code and ~~shall equal two percentage points on each Adjustment Date thereafter~~Treasury Regulations Section 1.860G-2(a)(1). It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (~~xxxi~~xxviii) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual Mort Sec Corp Wamu Mo Pa Th Ce Se 03 S6)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section ~~2.04~~ 2.01 herein, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) ~~None~~ Except for four of the Group I Loans, none of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~98.42% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~1.22% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.36% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; approximately 97.46% (by Principal Balance) of the Group II Loans will be secured by owner occupied ~~properties~~Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 2.54% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and none of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 99.43% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, none of the Group III Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 0.57% (by Principal Balance) of the Group III Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 98.81% (by Principal Balance) of the Group IV Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 0.88% (by Principal Balance) of the Group IV Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 0.31% (by Principal Balance) of the Group IV Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; and approximately 98.65% (by Principal Balance) of the Group V Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.35% (by Principal Balance) of the Group V Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and none of the Group V Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable)~~Note; (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~94.62% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.08% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately 82.32% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately 17.69% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately 34.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.had

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual Mort Sec Corp Pas THR Certs Ser 2001 Ms15)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section ~~2.04~~ 2.01 herein, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise ~~indicated:~~indicated (provided, however, that, with respect to the November Loans, all principal balances and percentages in this Section 2.03 are calculated after the deduction of the principal portion of the November 1, 2001, scheduled monthly payments): (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan ~~that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage ~~Loan that is not a Cooperative~~ Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~94.95% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~4.35% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.70% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; approximately 96.93% (by Principal Balance) of the Group II Loans will be secured by owner occupied ~~properties~~Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 3.07% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and none of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; and approximately 99.13% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 0.87% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and none of the Group III Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable)~~Note; (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~94.57% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~5.44% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no ~~Mortgage~~ Group I Loan had a current Loan-to-Value Ratio greater than 95%~~; (xxviii) Approximately 82.32~~; approximately 97.68% (by Principal Balance) of the ~~Mortgage~~ Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 2.31% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group II Loan had a current Loan-to-Value Ratio greater than 95%; and approximately 96.25% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 3.76% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group III Loan had a current Loan-to-Value Ratio greater than 95%; 100 (xxvi) Approximately 50.04% (by Principal Balance) of the Group I Loans, approximately 77.28% (by Principal Balance) of the Group II Loans and approximately 60.85% (by Principal Balance) of the Group III Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~49.96% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, approximately 22.73% (by Principal Balance) of the Group II Loans and approximately 39.16% (by Principal Balance) of the Group III Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~96.17%, 71.90% and 90.80% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, Group II Loans and Group III Loans, respectively, were originated under full documentation programs;; and (~~xxx~~xxviii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual MSC Mort Pass-Through Cert Ser 2001-Ms12)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section ~~2.04~~ 2.01 herein, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately 94.82% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 5.04% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 0.14% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately 98.93% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.08% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately 82.32% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately 17.69% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately 34.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mortgage Pass Through Certificate Series 2000-7)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, ~~disclosure and~~ disclosure, recording ~~laws,~~ and predatory and abusive lending ~~laws applicable to the originating lender~~laws; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~95.14% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~4.77% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and ~~approximately 0.14~~0.09% ~~(by Principal Balance)~~ of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.53% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.46% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~80.66% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~19.34% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~45.48% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan ~~is subject to~~ secured by Mortgaged Property located in the ~~Home Ownership and Equity Protection Act~~ State of ~~1994~~ Georgia, that was originated on or ~~Section 226.32 of Regulation Z~~after October 1, 2002, is a ~~"high-cost" loan or a "predatory" loan~~ “home loan” as defined ~~under any state or local law or regulation applicable to~~ in the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or OhioGeorgia Fair Lending Act; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass Through Certificates Series 2003-Ar4)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~97.69% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~2.10% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.21% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx ~~Mae~~ Xxx or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.61% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.39% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~92.68% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~7.32% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~82.48% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx~~) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi~~) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxxi) ~~With respect to each~~ Each Mortgage ~~Loan,~~ Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the ~~Periodic Cap shall equal five percentage points on the first Adjustment Date~~ Code and ~~shall equal two percentage points on each Adjustment Date thereafter~~Treasury Regulations Section 1.860G-2(a)(1). It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (~~xxxi~~xxx) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass Through Certs Ser 2003-S10)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section ~~2.04~~ 2.01 herein, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan ~~that~~ which is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately 94.82% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 5.04% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 0.14% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately 98.93% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.08% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately 82.32% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately 17.69% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately 34.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual MSC Mort Pass Through Cert Ser 2001-Ms11)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~95.98% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~4.02% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and ~~approximately 0.14% (by Principal Balance)~~ none of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.43% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.57% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~78.86% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~21.15% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~39.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual Mort Sec Corp Wamu Mor Pas Th Ce Se 03 Ar7)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~96.56% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~3.38% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.06% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.50% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.50% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~83.78% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~16.22% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~37.24% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass Through Certificates Series 2003-Ar6)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section ~~2.04~~ 2.01 herein, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished~~; (ii)~~ ; As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage~~; (iii)~~ ; Immediately upon the transfer and assignment contemplated herein, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement)~~; (iv)~~ ; As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days~~; (v)~~ ; As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property~~; (vi)~~ ; As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor~~; (vii)~~ ; As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted~~; (viii)~~ ; Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender; (ix)~~ ; Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company~~; (x)~~ ; As of the Closing Date, each Mortgage Loan ~~that~~ which is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Xxx or Xxxxxxx Mac, and has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and ~~inures~~ will be in full force and effect and inure to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Certificateholders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; ; All of the Mortgage Loans (xiother than the Additional Collateral Loans) ~~Each Mortgage Loan~~ with a Loan-to-Value ~~Ratio~~ Ratios as of the Cut-Off Date in excess of 80% ~~was~~ were covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect~~; (xii)~~ ; As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer~~; (xiii)~~ ; As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies~~; (xiv)~~ ; Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx ~~Xxx~~Mae/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company~~; (xv)~~ ; As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, ~~triplex, fourplex,~~ condominium project, townhouse, a planned unit development or a de minimis planned unit development~~; (xvi)~~ ; As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity~~; (xvii)~~ ; As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met ~~the applicable Underwriting Standards~~Xxxxxx Mae or Xxxxxxx Mac requirements, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company~~; (xviii)~~ ; None of the Mortgage Loans ~~are~~ is a Buydown ~~Loans; (xix)~~ Loan; Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~92.26% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~6.00% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~1.74% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties; (xx)~~ investor properties of the related Mortgagors; Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac~~; (xxi)~~ ; The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards~~; (xxii)~~ ; All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or if the ~~terms of~~ proposed transferee meets the ~~related~~ creditworthiness requirements under the Mortgage Note~~; (xxiii)~~ ; The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made~~; (xxiv)~~ ; With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code)~~; (xxv)~~ ; Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement~~; (xxvi)~~ ; With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable); (xxvii)~~ Note; Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~69.32% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~15.84% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no 14.83%(by Principal Balance) of the Mortgage ~~Loan~~ Loans had a current Loan-to-Value Ratio greater than 95%~~; (xxviii)~~ ; Approximately ~~82.32~~9.34% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~90.66% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property~~; (xxix)~~ ; Not less than approximately ~~34.34~~90.75% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs~~; (xxx)~~ ; Each ~~Mortgage~~ Additional Collateral Loan ~~constitutes~~ is covered by a ~~qualified mortgage under Section 860G(a)(3)(A) of~~ Surety Bond; Each Additional Collateral Loan is secured solely by the ~~Code~~ related Mortgaged Property and ~~Treasury Regulations~~by a securities account owned by the related Mortgagor or a guarantor; and Section 1. ~~860G-2(a)(1~~860G- 2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section ~~2.08~~ 2.03 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the ~~Trust~~ Certificateholders in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," ", or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the ~~Trust~~Trustee, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," ", any such substitution shall be made only if the Company provides to the Trustee and the Certificate Insurer an Opinion of Counsel ~~addressed to the Trust and the Trustee~~ reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section ~~2.07~~2.02. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section ~~2.07~~2.02. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 ~~Residual Interest~~ Certificateholders or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 ~~Residual Interest~~Certificateholders.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (PNC Mortgage Securities Corp Mort Pass Thro Cert Ser 2000-9)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/~~Xxxxxxx~~ Freddie Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac approval, or are approvable by Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~96.58% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related ~~Mortgagors,~~ Mortgagors and approximately ~~5.04~~3.42% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the ~~Mortgagors and approximately 0.14% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties~~Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.75% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.25% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 9590% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 9590%; (xxviii) Approximately ~~82.32~~61.06% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~38.94% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~27.58% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; (xxxii) No Mortgage Loan is a High Cost Loan or Covered Loan (as such terms are defined in the Standard & Poor's LEVELS® Glossary in effect on the Closing Date, which is now Version 5.6b Revised, Appendix E, applicable portions of which are attached hereto as Exhibit C) and no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act; and (~~xxxii~~xxxiii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) or (xxxii) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the ~~REMIC I Regular Interests and the Class R-1 Residual Interest~~ Certificates or the Trustee on behalf of the Holders of the ~~REMIC I Regular Interests and the Class R-1 Residual Interest~~Certificates.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (WaMu Mortgage Pass-Through Certificates, Series 2005-Ar5)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) ~~Each~~ All of the Mortgage ~~Loan~~ Loans with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% ~~was~~ were covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx ~~Mae~~ Xxx or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~93.16% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~6.84% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and ~~approximately 0.14% (by Principal Balance)~~ none of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.48% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.52% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no none of the Mortgage ~~Loan~~ Loans had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~55.55% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~47.46% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~30.12% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; (xxxii) No Mortgage Loan is a High Cost Loan or Covered Loan (as such terms are defined in the Standard & Poor's LEVELS® Glossary in effect on the Closing Date, which is now Version 5.6 Revised, Appendix E, applicable portions of which are attached hereto as Exhibit C) and no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act; and (~~xxxii~~xxxiii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (~~xxxi~~xxxii) or (xxxiii) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the ~~REMIC I Regular Interests and the Class R-1 Residual Interest~~ Certificates or the Trustee on behalf of the Holders of the ~~REMIC I Regular Interests and the Class R-1 Residual Interest~~Certificates.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (WaMu Mortgage Pass-Through Certificates, Series 2004-Ar11)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the PNC Mortgage Loans provided for in Section ~~2.04 herein~~2.01 herein and the conveyance of the Clipper Mortgage Loans provided for in the Clipper Loan Sale Agreement, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished~~; (ii)~~ ; As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage~~; (iii)~~ ; Immediately upon the transfer and assignment contemplated ~~herein~~herein and in the Clipper Loan Sale Agreement, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each PNC Mortgage Loan and Clipper Mortgage Loan, respectively, free and clear of any encumbrance or lien (other than any lien under this Agreement)~~; (iv)~~ ; As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days~~; (v)~~ ; As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property~~; (vi)~~ ; As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor~~; (vii)~~ ; As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted~~; (viii)~~ ; Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender; (ix)~~ ; Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company~~; (x)~~ ; As of the Closing Date, each Mortgage Loan ~~that~~ which is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Xxx or Xxxxxxx Mac, and has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and ~~inures~~ will be in full force and effect and inure to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Certificateholders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; ; All of the Group I and Group II Loans and approximately 99.8% (xiby Principal Balance) ~~Each Mortgage Loan~~ of the Group III Loans with a Loan-to-Value ~~Ratio~~ Ratios as of the Cut-Off Date in excess of 80% ~~was~~ were covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect~~; (xii)~~ ; As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer~~; (xiii)~~ ; As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies~~; (xiv)~~ ; Each Mortgage ~~(exclusive of any riders thereto)~~ was documented by appropriate Xxxxxx ~~Xxx~~Mae/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company~~; (xv)~~ ; As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, ~~triplex, fourplex,~~ condominium project, townhouse, a planned unit development or a de minimis planned unit development~~; (xvi)~~ ; As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity~~; (xvii)~~ ; As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met ~~the applicable Underwriting Standards~~Xxxxxx Mae or Xxxxxxx Mac requirements, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company~~; (xviii)~~ ; None of the ~~Mortgage~~ Group I Loans, one of the Group II Loans and two of the Group III Loans are Buydown Loans~~; (xix)~~ ; Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~71.61% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~3.72% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~24.68% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; approximately 94.66% (by Principal Balance) of the Group II Loans will be secured by owner occupied ~~properties;~~ Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.13% (xxby Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 4.21% (by Principal Balance) of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; and approximately 71.11% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.11% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 27.78% (by Principal Balance) of the Group III Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac~~; (xxi)~~ ; The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards~~; (xxii)~~ ; All of the Mortgage Loans have due-on-sale clauses; by the terms of the Mortgage Notes, however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note; (xxiii)~~ law; The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made~~; (xxiv)~~ ; With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code)~~; (xxv)~~ ; Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement~~; (xxvi)~~ ; With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable); (xxvii)~~ Note; Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~82.48% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current ~~Loan-~~Loan- to-Value Ratio less than or equal to 80%, approximately ~~1.08~~15.93% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and ~~no Mortgage Loan~~ approximately 1.59% (by Principal Balance) of the Group I Loans had a current Loan-to-Value Ratio greater than 95%~~; (xxviii) Approximately 82.32~~; approximately 77.37% (by Principal Balance) of the ~~Mortgage~~ Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 20.76% (by Principal Balance) of the Group II Loans had a current Loan- to-Value Ratio greater than 80% but less than or equal to 95% and approximately 1.87% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 95%; and approximately 46.42% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 45.71% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and approximately 7.87% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio greater than 95%; Approximately 70.19% (by Principal Balance) of the Group I Loans, approximately 41.97% (by Principal Balance) of the Group II Loans and approximately 38.85% (by Principal Balance) of the Group III Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~29.81% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, approximately 58.03% (by Principal Balance) of the Group II Loans and approximately 61.16% (by Principal Balance) of the Group III Loans were originated for the purpose of purchasing the Mortgaged Property~~; (xxix)~~ ; Not less than approximately ~~34.34~~40.71%, 31.16% and 52.18% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, Group II Loans and Group III Loans, respectively, were originated under full documentation programs~~; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations~~; and Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section ~~2.08~~ 2.03 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the ~~Trust~~ Certificateholders in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall purchase or repurchase, subject to the limitations set forth in the definition of "Purchase Price," ", or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the ~~Trust~~Trustee, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," ", any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel ~~addressed to the Trust and the Trustee~~ reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section ~~2.07~~2.02. Any such purchase or repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section ~~2.07~~2.02. It is understood and agreed that the obligation of the Company to provide such substitution or to make such purchase or repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 ~~Residual Interest~~ Certificateholders or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 ~~Residual Interest~~Certificateholders.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (PNC Mortgage Sec Corp Mort Pass THR Cert Ser 2000-3)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the PNC Mortgage Loans provided for in Section ~~2.04 herein~~2.01 herein and the conveyance of the Clipper Mortgage Loans provided for in the Clipper Loan Sale Agreement, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated ~~herein~~herein and in the Clipper Loan Sale Agreement, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each PNC Mortgage Loan and Clipper Mortgage Loan, respectively, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan ~~that is not a Cooperative Loan~~ is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Xxx or Xxxxxxx Mac, and has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Xxx or Xxxxxxx Mac and qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and ~~inures~~ will be in full force and effect and inure to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Certificateholders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) ~~Each~~ All of the Mortgage ~~Loan~~ Loans with a Loan-to-Value ~~Ratio~~ Ratios as of the Cut-Off Date in excess of 80% ~~was~~ were covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage ~~(exclusive of any riders thereto)~~ was documented by appropriate Xxxxxx ~~Xxx~~Mae/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex~~, triplex, fourplex~~, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met ~~the applicable Underwriting Standards~~Xxxxxx Mae or Xxxxxxx Mac requirements, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~98.47% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 5.04% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 0.14% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately 98.93% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.08% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately 82.32% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately 17.69% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately 34.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.approximately

Appears in 1 contract

Samples: Pooling and Servicing Agreement (PNC Mortgage Sec Corp Mort Pass THR Cert Ser 1999-7)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the PNC Mortgage Loans provided for in Section ~~2.04 herein~~2.01 herein and the conveyance of the Clipper Mortgage Loans provided for in the Clipper Loan Sale Agreement, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates ~~respecting~~ respect- ing which such information is furnished; ; (ii) As of the Closing Date, each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; ; (iii) Immediately upon the transfer and assignment contemplated ~~herein~~herein and in the Clipper Loan Sale Agreement, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each PNC Mortgage Loan and Clipper Mortgage Loan, respectively, free and clear of any encumbrance or lien (other than any lien under this Agreement); ; (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; ; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; ; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; ; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; ; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender;~~ ; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; ; (x) As of the Closing Date, each Mortgage ~~Loan that is not a Cooperative~~ Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to FNMA or FHLMC, and has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was acceptable to FNMA or FHLMC and qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and ~~inures~~ will be in full force and effect and inure to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Certificateholders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; ; (xi) ~~Each Mortgage Loan~~ Not less than approximately 98.2% (by Principal Balance) of the Group I Loans, all of the Group II Loans, not less than approximately 82.3% (by Principal Balance) of the Group III Loans, not less than approximately 75.0% (by Principal Balance) of the Group IV Loans and not less than approximately 69.8% (by Principal Balance) of the Group V Loans with ~~a Loan-~~Loan- to-Value ~~Ratio~~ Ratios as of the Cut-Off Date in excess of 80% ~~was~~ were covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; ; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; ; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; ; (xiv) Each Mortgage ~~(exclusive of any riders thereto)~~ was documented by appropriate ~~Xxxxxx Xxx~~FNMA/~~Xxxxxxx Mac~~ FHLMC mortgage instruments in effect at the time of origination, or other instruments approved by the Company; ; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex, ~~triplex, fourplex,~~ condominium project, townhouse, a planned unit development or a de minimis planned unit development; ; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; ; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met ~~the applicable Underwriting Standards~~FNMA or FHLMC requirements, are located in a condominium or planned unit development projects which have received ~~Xxxxxx Mae~~ FNMA or ~~Xxxxxxx Mac~~ FHLMC approval, or are approvable by ~~Xxxxxx Mae~~ FNMA or ~~Xxxxxxx Mac~~ FHLMC or have otherwise been approved by the Company; ; (xviii) None of the Mortgage Loans are Buydown Loans; ; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~97.26% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~1.39% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~1.35% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; approximately 96.88% (by Principal Balance) of the Group II Loans will be secured by owner occupied ~~properties;~~ Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.77% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 1.35% (by Principal Balance) of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 72.07% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which are the primary 125 residences of the related Mortgagors, approximately 2.76% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 25.18% (by Principal Balance) of the Group III Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 91.50% (by Principal Balance) of the Group IV Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.46% (by Principal Balance) of the Group IV Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 7.04% (by Principal Balance) of the Group IV Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 92.97% (by Principal Balance) of the Group V Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.67% (by Principal Balance) of the Group V Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 5.35% (by Principal Balance) of the Group V Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; and none of the Group I, Group II, Group III, Group IV and Group V Loans will be secured by interests in Cooperative Apartments; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to ~~Xxxxxx Mae~~ FNMA or ~~Xxxxxxx Mac;~~ FHLMC; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; ; (xxii) All of the Mortgage Loans have due-on-sale clauses; by the terms of the Mortgage Notes, however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note;~~ law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; ; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note~~ Note; (~~or portion thereof, as applicable); (xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~91.21% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~8.72% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and 0.06% (by Principal Balance) of the Group I Loans had a current Loan-to- Value Ratio greater than 95%; approximately 95.02% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 4.97% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no ~~Mortgage~~ Group II Loan had a current Loan-to-Value Ratio greater than 95%~~; (xxviii) Approximately 82.32~~; approximately 80.28% (by Principal Balance) of the ~~Mortgage~~ Group III Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately 17.69% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately 34.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.had

Appears in 1 contract

Samples: Pooling and Servicing Agreement (PNC Mortgage Securities Corp)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is ~~not a Cooperative Loan is~~ covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~97.85% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~1.88% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.28% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; and approximately 96.37% (by Principal Balance) of the Group II Loans will be secured by owner occupied ~~properties~~Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 3.63% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and none of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~97.94% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~2.06% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no ~~Mortgage~~ Group I Loan had a current Loan-to-Value Ratio greater than 95%; and approximately 98.22% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.78% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group II Loan had a current Loan-to-Value Ratio greater than 95%; (~~xxviii~~xxvi) Approximately ~~82.32~~81.65% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and approximately 95.22% (by Principal Balance) of the Group II Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~18.35% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and approximately 4.78% (by Principal Balance) of the Group II Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~87.16% and 88.64% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and Group II Loans, respectively, were originated under full documentation programs; (~~xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi~~xxviii) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxix) ~~With respect to each~~ Each Mortgage ~~Loan,~~ Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the ~~Periodic Cap shall equal five percentage points on the first Adjustment Date~~ Code and ~~shall equal two percentage points on each Adjustment Date thereafter~~Treasury Regulations Section 1.860G-2(a)(1). It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (~~xxxi~~xxviii) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee and the Certificate Insurer an Opinion of Counsel addressed to the ~~Trust~~ Trust, the Trustee and the ~~Trustee~~ Certificate Insurer reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual MSC Mort Pass THR Cert Ser 2003 Ms8)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section ~~2.04~~ 2.01 herein, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) ~~Immediately~~ As of the Closing Date, the Company had good title to, and was the sole owner of, each Mortgage Loan free and clear of any encumbrance or lien, and immediately upon the transfer and assignment ~~contemplated herein~~herein contemplated, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan ~~that~~ which is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to FNMA or FHLMC, and has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was acceptable to FNMA or FHLMC and qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and ~~inures~~ will be in full force and effect and inure to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Certificateholders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the 68 related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) ~~Each Mortgage Loan~~ Not less than approximately 50.3% (by Principal Balance) of the Group I Loans, not less than approximately 51.0% (by Principal Balance) of the Group II Loans, not less than approximately 82.6% (by Principal Balance) of the Group III Loans and not less than approximately 81.4% (by Principal Balance) of the Group IV Loans with a Loan-to-Value ~~Ratio~~ Ratios as of the Cut-Off Date in excess of 80% ~~was~~ were covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage ~~(exclusive of any riders thereto)~~ was documented by appropriate ~~Xxxxxx Xxx~~FNMA/~~Xxxxxxx Mac~~ FHLMC mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing ~~Date~~Date and other than with respect to Cooperative Loans, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex~~, triplex, fourplex~~, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met ~~the applicable Underwriting Standards~~FNMA or FHLMC requirements, are located in a condominium or planned unit development projects which have received ~~Xxxxxx Mae~~ FNMA or ~~Xxxxxxx Mac~~ FHLMC approval, or are approvable by ~~Xxxxxx Mae~~ FNMA or ~~Xxxxxxx Mac~~ FHLMC or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~92.5% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~1.7% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~5.9% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately 98.93% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.08% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately 82.32% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately 17.69% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately 34.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.Principal

Appears in 1 contract

Samples: Pooling and Servicing Agreement (PNC Mortgage Securities Corp)

Representations and Warranties of the Company Concerning the Mortgage Loans. ~~With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the~~ The Company hereby represents and warrants to the ~~Trust that as of~~ Trustee and the ~~Cut-Off Date unless otherwise indicated~~Certificate Insurer that: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, other than with respect to Cooperative Loans, each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple ~~or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate~~ in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) ~~Immediately~~ As of the Closing Date, the Company had good title to, and was the sole owner of, each Mortgage Loan free and clear of any encumbrance or lien, and immediately upon the transfer and assignment ~~contemplated herein~~herein contemplated, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan ~~that is not a~~ (except the Cooperative ~~Loan~~ Loans) is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to FNMA or FHLMC, and has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was acceptable to FNMA or FHLMC and qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and ~~inures~~ will be in full force and effect and inure to the benefit of the ~~Trust~~ Certificateholders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) ~~Each~~ As of the Closing Date, each Mortgage Loan ~~with~~ which had a Loan-to-Value Ratio at the time of the origination of the Mortgage Loan in excess of 80% (except for one Mortgage Loan that as of the Cut-Off Date ~~in excess~~ had a Principal Balance of ~~80%~~ $493,274) was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect, except for any Mortgage Loan for which the outstanding Principal Balance thereof at any time subsequent to origination was 80% or less of the then current value of the related Mortgaged Property (as determined by an appraisal obtained subsequent to origination); (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the ~~Company, the Master Servicer~~ Company or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating ~~Agencies~~Agency; (xiv) Each Mortgage ~~(exclusive of any riders thereto)~~ was documented by appropriate ~~Xxxxxx Xxx~~FNMA/~~Xxxxxxx Mac~~ FHLMC mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, other than with respect to a Cooperative Loan, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a ~~one-~~ one-to four-family dwelling unit, including units in a duplex~~, triplex, fourplex~~, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met ~~the applicable Underwriting Standards~~FNMA or FHLMC requirements, are located in a condominium or planned unit development projects which have received ~~Xxxxxx Mae~~ FNMA or ~~Xxxxxxx Mac~~ FHLMC approval, or are approvable by ~~Xxxxxx Mae~~ FNMA or ~~Xxxxxxx Mac or have otherwise been approved by the Company~~FHLMC; (xviii) ~~None~~ Approximately 0.5% (by Principal Balance) of the Mortgage Loans are Buydown Loans; (xix) ~~Based~~ As of the Cut-Off Date, based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~97.0% (by Principal Balance) of the Mortgage Loans will be secured by ~~owner~~ owner-occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~2.5% (by Principal Balance) of the Mortgage Loans will be secured by ~~owner~~ owner-occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.5% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) ~~Prior~~ Except with respect to approximately 1.4% (by Principal Balance as of the Cut-Off Date) of the Mortgage Loans, prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to ~~Xxxxxx Mae~~ FNMA or ~~Xxxxxxx Mac~~FHLMC; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) The information in the Current Report on Form 8-K prepared by the Company in connection with the Mortgage Loans is correct in every material respect; (xxiii) All of the Mortgage Loans have due-on-sale clauses; by the terms of the Mortgage Notes, however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (~~xxiii~~xxiv) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (~~xxiv~~xxv) With respect to ~~each~~ a Mortgage Loan that is a Cooperative Loan, the Cooperative Stock that is pledged as security for the ~~Cooperative~~ Mortgage Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (~~xxv~~xxvi) Each Cooperative Loan is secured by a valid, subsisting and enforceable ~~(except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity)~~ perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (~~xxvi~~xxvii) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable)~~Note; (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately 98.93% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.08% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately 82.32% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately 17.69% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately 34.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (PNC Mortgage Securities Corp)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage ~~Loan that is not a Cooperative~~ Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~98.34% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~1.60% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.05% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; and approximately 97.34% (by Principal Balance) of the Group II Loans will be secured by owner occupied ~~properties~~Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 2.58% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 0.07% (by Principal Balance) of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable)~~Note; (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~96.96% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~3.03% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and ~~no Mortgage Loan~~ none of the Group I Loans had a current Loan-to-Value Ratio greater than 95%; and approximately 99.55% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 0.46% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and none of the Group II Loans had a current Loan-to-Value Ratio greater than 95%; (~~xxviii~~xxvi) Approximately ~~82.32~~79.84% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and approximately 93.03% (by Principal Balance) of the Group II Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~20.17% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and approximately 6.97% (by Principal Balance) of the Group II Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~83.55% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and approximately 84.75% (by Principal Balance) of the Group II Loans were originated under full documentation programs;; and (~~xxx~~xxviii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass Through Cert Series 2002-S8)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~95.47% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~4.50% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.03% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.21% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.80% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~77.00% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~23.00% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~41.29% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass Through Cer Ser 2003-Ar8)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~96.50% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~3.50% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and ~~approximately 0.14% (by Principal Balance)~~ none of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.71% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.29% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~89.70% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~10.30% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~83.45% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx~~) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi~~) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxxi) ~~With respect to each~~ Each Mortgage ~~Loan,~~ Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the ~~Periodic Cap shall equal five percentage points on the first Adjustment Date~~ Code and ~~shall equal two percentage points on each Adjustment Date thereafter~~Treasury Regulations Section 1.860G-2(a)(1). It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (~~xxxi~~xxx) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass-Through Certificates Series 2003-S7)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section ~~2.04~~ 2.01 herein, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan ~~that~~ which is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Mae or Xxxxxxx Mac, and has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and ~~inures~~ will be in full force and effect and inure to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Certificateholders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx ~~Xxx~~Mae/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met ~~the applicable Underwriting Standards~~Xxxxxx Mae or Xxxxxxx Mac requirements, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) ~~None~~ Except for three of the Group II Loans, none of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~98.82% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~0.52% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.66% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; approximately 98.39% (by Principal Balance) of the Group II Loans will be secured by owner occupied ~~properties~~Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.15% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 0.46% (by Principal Balance) of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; and approximately 94.25% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 4.23% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 1.52% (by Principal Balance) of the Group III Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable)~~Note; (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~91.67% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~8.33% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no ~~Mortgage~~ Group I Loan had a current Loan-to-Value Ratio greater than 95%~~; (xxviii) Approximately 82.32~~; approximately 92.97% (by Principal Balance) of the ~~Mortgage~~ Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 7.03% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group II Loan had a current Loan-to-Value Ratio greater than 95%; and all of the Group III Loans had a current Loan-to-Value Ratio less than or equal to 80%; (xxviii) Approximately 61.53% (by Principal Balance) of the Group I Loans, approximately 59.88% (by Principal Balance) of the Group II Loans and approximately 68.32% (by Principal Balance) of the Group III Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~38.46% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, approximately 40.12% (by Principal Balance) of the Group II Loans and approximately 31.68% (by Principal Balance) of the Group III Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~86.70%, 87.08% and 66.40% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, Group II Loans and Group III Loans, respectively, were originated under full documentation programs;; and (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual Mor Sec Corp Mor Pass Thru Cert Ser 2001-4)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section ~~2.04~~ 2.01 herein, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; ; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; ; (iii) ~~Immediately~~ As of the Closing Date, the Company had good title to, and was the sole owner of, each Mortgage Loan free and clear of any encumbrance or lien, and immediately upon the transfer and assignment ~~contemplated herein~~herein contemplated, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); ; (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; ; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; ; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; ; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; ; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender;~~ ; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; ; (x) As of the Closing Date, each Mortgage Loan ~~that~~ which is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to FNMA or FHLMC, and has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was acceptable to FNMA or FHLMC and qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and ~~inures~~ will be in full force and effect and inure to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Certificateholders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; ; (xi) ~~Each Mortgage Loan~~ All of the Group I and Group II Loans, not less than approximately 87.6% (by Principal Balance) of the Group III Loans, not less than approximately 66.7% (by Principal Balance) of the Group IV Loans and not less than approximately 74.8% (by Principal Balance) of the Group V Loans with a Loan-to-Value ~~Ratio~~ Ratios as of the Cut-Off Date in excess of 80% ~~was~~ were covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; ; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; ; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; ; (xiv) Each Mortgage ~~(exclusive of any riders thereto)~~ was documented by appropriate ~~Xxxxxx Xxx~~FNMA/~~Xxxxxxx Mac~~ FHLMC mortgage instruments in effect at the time of origination, or other instruments approved by the Company; ; (xv) As of the Closing ~~Date~~Date and other than with respect to Cooperative Loans, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex, ~~triplex, fourplex,~~ condominium project, townhouse, a planned unit development or a de minimis planned unit development; ; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; ; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met ~~the applicable Underwriting Standards~~FNMA or FHLMC requirements, are located in a condominium or planned unit development projects which have received ~~Xxxxxx Mae~~ FNMA or ~~Xxxxxxx Mac~~ FHLMC approval, or are approvable by ~~Xxxxxx Mae~~ FNMA or ~~Xxxxxxx Mac~~ FHLMC or have otherwise been approved by the Company; ; (xviii) None of the Mortgage Loans are Buydown Loans; ; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~98.54% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~1.32% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 0.14% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; approximately 94.98% (by Principal Balance) of the Group II Loans will be secured by owner occupied ~~properties;~~ Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 4.95% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 0.07% (by Principal Balance) of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 92.89% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 2.75% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 4.36% (by Principal Balance) of the Group III Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 80.57% (by Principal Balance) of the Group IV Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.93% (by Principal Balance) of the Group IV Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 17.50% (by Principal Balance) of the Group IV Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 91.04% (by Principal Balance) of the Group V Loans will be secured by owner occupied Mortgaged Properties and approximately 8.96% (by Principal Balance) of the Group V Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; none of the Group I, Group II and Group V Loans will be secured by interests in Cooperative Apartments and approximately 0.14% (by Principal Balance) of the Group III Loans and approximately 0.85% (by Principal Balance) of the Group IV Loans will be secured by interests in Cooperative Apartments; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to ~~Xxxxxx Mae~~ FNMA or ~~Xxxxxxx Mac;~~ FHLMC; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; ; (xxii) All of the Mortgage Loans have due-on-sale clauses; by the terms of the Mortgage Notes, however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note;~~ law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; ; (xxiv) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trustee will not be materially adversely affected by the absence of the original Mortgage Note; (xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately 90.09% (by Principal Balance) of the Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 9.92% (by Principal Balance) of the Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group I Loan had a current Loan-to-Value Ratio greater than 95%; approximately 96.50% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 3.49% (by Principal Balance) of the Group II Loans had a current Loan-to-Value 104 Section 1. 860G-2(a)(1); (xxix) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the ~~Cooperative~~ Mortgage Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); ; and (~~xxv~~xxx) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately 98.93% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.08% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately 82.32% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately 17.69% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately 34.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section ~~2.08~~ 2.03 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the ~~Trust~~ Certificateholders in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," ", or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the ~~Trust~~Trustee, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," ", any such substitution shall be made only if the Company provides to the Trustee and the Certificate Insurer an Opinion of Counsel ~~addressed to the Trust and the Trustee~~ reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section ~~2.07~~2.02. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section ~~2.07~~2.02. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 ~~Residual Interest~~ Certificateholders or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 ~~Residual Interest~~Certificateholders.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (PNC Mortgage Securities Corp)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, ~~disclosure and~~ disclosure, recording ~~laws,~~ and predatory and abusive lending ~~laws applicable to the originating lender~~laws; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage ~~Loan that is not a Cooperative~~ Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~97.10% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~2.16% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.74% ~~(by Principal Balance)~~ of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~98.01% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~1.99% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (~~xxviii~~xxvi) Approximately ~~82.32~~70.32% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~29.68% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~94.88% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (~~xxx~~xxviii) No Mortgage Loan secured by Mortgaged Property located in the State of Georgia, that was originated on or after October 1, 2002, is a "home loan" as defined in the Georgia Fair Lending Act; and (xxix) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee and the Certificate Insurer an Opinion of Counsel addressed to the ~~Trust~~ Trust, the Trustee and the ~~Trustee~~ Certificate Insurer reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual MSC Mort Pass Thru Cert Series 2003-Ms7)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a ~~Selling and Servicing Contract~~ subservicing agreement have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any ~~Servicer~~Subservicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and ~~approximately 0.14~~% ~~(by Principal Balance)~~ of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no approximately % (by Principal Balance) of the Mortgage ~~Loan~~ Loans had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is a High Cost Loan or Covered Loan (as such terms are defined in the Standard & Poor’s LEVELS® Glossary in effect on the Closing Date, which is now Version 5.6 Revised, Appendix E, applicable portions of which are attached hereto as Exhibit C) and no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act; and (xxxii) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxxiii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) and (xxxii) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the ~~REMIC I Regular Interests and the Class R-1 Residual Interest~~ Certificates or the Trustee on behalf of the Holders of the ~~REMIC I Regular Interests and the Class R-1 Residual Interest~~Certificates.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (BellaVista Finance CORP)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage ~~Loan that is not a Cooperative~~ Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) ~~Each~~ None of the Mortgage ~~Loan with~~ Loans will have a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% ~~was~~ or will be covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty~~, and such policy or guaranty is valid and remains in full force and effect~~; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company;; 58 (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~96.29% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~3.71% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and ~~approximately 0.14% (by Principal Balance) of the~~ no Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable)~~Note; (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, ~~approximately 98.93% (by Principal Balance)~~ all of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.08% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (~~xxviii~~xxvi) Approximately ~~82.32~~86.02% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~13.99% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~35.91% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (~~xxx~~xxviii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxix) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass-Through Certificate Series 2002-Ar4)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the PNC Mortgage Loans provided for in Section ~~2.04 herein~~2.01 herein and the conveyance of the Clipper Mortgage Loans provided for in the Clipper Loan Sale Agreement, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished~~; (ii)~~ ; As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage~~; (iii)~~ ; Immediately upon the transfer and assignment contemplated ~~herein~~herein and in the Clipper Loan Sale Agreement, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each PNC Mortgage Loan and Clipper Mortgage Loan, respectively, free and clear of any encumbrance or lien (other than any lien under this Agreement)~~; (iv)~~ ; As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days~~; (v)~~ ; As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property~~; (vi)~~ ; As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor~~; (vii)~~ ; As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted~~; (viii)~~ ; Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender; (ix)~~ ; Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company~~; (x)~~ ; As of the Closing Date, each Mortgage Loan ~~that~~ which is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Xxx or Xxxxxxx Mac, and has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and ~~inures~~ will be in full force and effect and inure to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Certificateholders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; ; All of the Group I, Group II and Group III Loans and not less than approximately 99.8% (xiby Principal Balance) ~~Each Mortgage Loan~~ of the Group IV Loans with a Loan-to-Value ~~Ratio~~ Ratios as of the ~~Cut-~~Cut- Off Date in excess of 80% ~~was~~ were covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect~~; (xii)~~ ; As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer~~; (xiii)~~ ; As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies~~; (xiv)~~ ; Each Mortgage ~~(exclusive of any riders thereto)~~ was documented by appropriate Xxxxxx ~~Xxx~~Mae/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company~~; (xv)~~ ; As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, ~~triplex, fourplex,~~ condominium project, townhouse, a planned unit development or a de minimis planned unit development~~; (xvi)~~ ; As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity~~; (xvii)~~ ; As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met ~~the applicable Underwriting Standards~~Xxxxxx Mae or Xxxxxxx Mac requirements, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company~~; (xviii) None of the Mortgage Loans are Buydown Loans; (xix)~~ ; Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~85.92% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~1.88% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~12.19% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; approximately 66.74% (by Principal Balance) of the Group II Loans will be secured by owner occupied ~~properties;~~ Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 2.30% (xxby Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 30.95% (by Principal Balance) of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 77.21% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 0.89% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 21.90% (by Principal Balance) of the Group III Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; and approximately 87.10% (by Principal Balance) of the Group IV Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 2.39% (by Principal Balance) of the Group IV Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 10.51% (by Principal Balance) of the Group IV Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac~~; (xxi)~~ ; The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately 98.93% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.08% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately 82.32% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately 17.69% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately 34.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (PNC Mortgage Securities Corp Mort Pass THR Cert Ser 1999-10)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section ~~2.04~~ 2.01 herein, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated~~: (i)~~ : The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (iii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (~~iii~~ii) Immediately upon the transfer and assignment contemplated herein, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); ; (iviii) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; ; (viv) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; ; (viv) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; ; (~~vii~~vi) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; ; (~~viii~~vii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender;~~ ; (ixviii) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; ; (xix) As of the Closing Date, each Mortgage Loan ~~that~~ which is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Xxx or Xxxxxxx Mac, and has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and ~~inures~~ will be in full force and effect and inure to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Certificateholders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; ; (xix) ~~Each~~ Approximately 82.5% (by Principal Balance) of the Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% ~~was~~ were covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; ; (~~xii~~xi) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; ; (~~xiii~~xii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; ; (~~xiv~~xiii) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx ~~Xxx~~Mae/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; ; (xvxiv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; ; (~~xvi~~xv) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; ; (~~xvii~~xvi) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met ~~the applicable Underwriting Standards~~Xxxxxx Mae or Xxxxxxx Mac requirements, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; ; (~~xviii~~xvii) ~~None~~ Except for seventeen Mortgage Loans, none of the Mortgage Loans are Buydown Loans; ; (~~xix~~xviii) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~95.64% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~4.12% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.24% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties;~~ investor properties of the related Mortgagors; (xxxix) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; ; (~~xxi~~xx) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; ; (~~xxii~~xxi) All of the Mortgage Loans have due-on-sale clauses; however, on or after the applicable first Adjustment Date, the due on sale provisions may not be exercised ~~at the time of a transfer~~ if prohibited by law or if the ~~terms of~~ proposed transferee meets the ~~related~~ creditworthiness requirements under the Mortgage Note; ; (~~xxiii~~xxii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately 98.93% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.08% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately 82.32% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately 17.69% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately 34.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.Section

Appears in 1 contract

Samples: Pooling and Servicing Agreement (PNC Mortgage Sec Corp Mort Pass THR Cert Ser 2001-2)

Representations and Warranties of the Company Concerning the Mortgage Loans. ~~With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the~~ The Company hereby represents and warrants to the ~~Trust that as of the Cut-Off Date unless otherwise indicated~~Trustee that: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, other than with respect to Cooperative Loans, each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) ~~Immediately~~ As of the Closing Date, the Company had good title to, and was the sole owner of, each Mortgage Loan free and clear of any encumbrance or lien, and immediately upon the transfer and assignment ~~contemplated herein~~herein contemplated, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (~~i.e.~~I.E., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan ~~that is not a~~ (except the Cooperative ~~Loan~~ Loans) is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to FNMA or FHLMC, and has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was acceptable to FNMA or FHLMC and qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and ~~inures~~ will be in full force and effect and inure to the benefit of the Mortgage Trust Certificateholders and Class R-1 Certificateholders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) ~~Each~~ As of the Closing Date, each Mortgage Loan ~~with~~ which had a Loan-to-Value Ratio as at the time of the ~~Cut-Off Date~~ origination of the Mortgage Loan in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect, except for any Mortgage Loan for which the outstanding Principal Balance thereof at any time subsequent to origination was 80% or less of the then current value of the related Mortgaged Property (as determined by an appraisal obtained subsequent to origination); (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the ~~Company, the Master Servicer~~ Company or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating ~~Agencies~~Agency; (xiv) Each Mortgage ~~(exclusive of any riders thereto)~~ was documented by appropriate ~~Xxxxxx Xxx~~FNMA/~~Xxxxxxx Mac~~ FHLMC mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, other than with respect to a Cooperative Loan, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex~~, triplex, fourplex~~, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met ~~the applicable Underwriting Standards~~FNMA or FHLMC requirements, are located in a condominium or planned unit development projects which have received ~~Xxxxxx Mae~~ FNMA or ~~Xxxxxxx Mac~~ FHLMC approval, or are approvable by ~~Xxxxxx Mae~~ FNMA or ~~Xxxxxxx Mac or have otherwise been approved by the Company~~FHLMC; (xviii) ~~None~~ Approximately 0.4% (by Principal Balance) of the Mortgage Loans are Buydown Loans; (xix) ~~Based~~ As of the Cut-Off Date, based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~94.1% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~0.8% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~5.1% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non~~investor properties of the related Mortgagors; and as of the Cut-~~owner occupied properties~~Off Date, none of the Mortgage Loans will be secured by interests in Cooperative Apartments; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to ~~Xxxxxx Mae~~ FNMA or ~~Xxxxxxx Mac~~FHLMC; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; by the terms of the Mortgage Notes, however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (xxiv) With respect to ~~each~~ a Mortgage Loan that is a Cooperative Loan, the Cooperative Stock that is pledged as security for the ~~Cooperative~~ Mortgage Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable ~~(except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity)~~ perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable)~~Note; (xxvii) ~~Based~~ As of the date of origination, based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~88.6% (by Principal Balance) of the Mortgage Loans had a ~~current~~ Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~11.4% (by Principal Balance) of the Mortgage Loans had a ~~current~~ Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a ~~current~~ Loan-to-Value Ratio at origination greater than 95%; (xxviii) Approximately 82.32% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately 17.69% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately 34.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (PNC Mortgage Securities Corp)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. 77 Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~98.29% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~1.31% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.40% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; and approximately 97.15% (by Principal Balance) of the Group II Loans will be secured by owner occupied ~~properties~~Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 2.29% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 0.56% (by Principal Balance) of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~97.23% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~2.77% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no ~~Mortgage~~ Group I Loan had a current Loan-to-Value Ratio greater than 95%; and approximately 99.25% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 0.75% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group II Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~68.59% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and approximately 87.36% (by Principal Balance) of the Group II Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~31.41% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and approximately 12.64% (by Principal Balance) of the Group II Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~81.68% and 83.55% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and Group II Loans, respectively, were originated under full documentation programs;; and (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual MSC Mortgage Pass Thro Cert Ser 2002-Ms7)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off ~~Date~~ Date, unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) ~~Each~~ All of the Mortgage ~~Loan~~ Loans with a Loan-to-Value ~~Ratio~~ Ratios both as of the Cut- Off Date and as of its respective origination date in excess of 80% were covered, as of the Cut-Off ~~Date in excess of 80% was covered~~ Date, by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement ~~or by a Selling and Servicing Contract~~ have been validly issued and remain in full force and effect, including such policies covering the ~~Company,~~ Company or the ~~Master Servicer or any~~ Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~93.09% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related ~~Mortgagors,~~ Mortgagors and approximately ~~5.04~~6.91% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the ~~Mortgagors and approximately 0.14% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties~~Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~96.71% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~2.53% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 9590% and no approximately 0.76% (by Principal Balance) of the Mortgage Loan had a current Loan-to-Value Ratio greater than 9590%; (~~xxviii~~xxvi) Approximately ~~82.32~~68.57% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~31.43% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~27.85% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (~~xxx~~xxviii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1);; and (~~xxxi~~xxix) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (xxx) No Mortgage Loan is a High Cost Loan or Covered Loan (as such terms are defined in the Standard & Poor's LEVELS® Glossary in effect on the Closing Date, which is now Version 5.6c Revised, Appendix E, applicable portions of which are attached hereto as Exhibit C) and no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act; (xxxi) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxxii) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor’s pro rata share of the Cooperative’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxxiii) No Mortgage Loan has a Closing Date Loan-to-Value Ratio greater than 100%; and (xxxiv) With respect to each Mortgage ~~Loan~~Loan that has a Prepayment Premium feature, ~~the Periodic Cap shall equal five percentage points on the first Adjustment Date~~ each such Prepayment Premium is enforceable in accordance with its terms, and ~~shall equal two percentage points on~~ each ~~Adjustment Date thereafter~~such Prepayment Premium is permitted pursuant to applicable federal, state and local law, subject to federal preemption where applicable. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the ~~Master~~ Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties (in the case of a breach of the representation set forth in clause (xxxiii) of this Section 2.08, as based on a determination of the applicable Closing Date Loan-to-Value Ratio using such evidence as is reasonably designed to approximate the value of the applicable Mortgaged Property as of the Closing Date) which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the ~~Master~~ Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (~~xxxi~~xxix) or clause (xxx) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section ~~2.04~~ 2.01 herein, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, other than with respect to Cooperative Loans, each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) ~~Immediately~~ As of the Closing Date, the Company had good title to, and was the sole owner of, each Mortgage Loan free and clear of any encumbrance or lien, and immediately upon the transfer and assignment ~~contemplated herein~~herein contemplated, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan ~~that is not a~~ (except the Cooperative ~~Loan~~ Loans) is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to FNMA or FHLMC, and has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was acceptable to FNMA or FHLMC and qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and ~~inures~~ will be in full force and effect and inure to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Certificateholders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) ~~Each~~ Other than with respect to Group I Loans representing 6.1% (by Principal Balance) of the Group I Loans, Group II Loans representing 5.7% (by Principal Balance) of the Group II Loans, Group III Loans representing 1.6% (by Principal Balance) of the Group III Loans and Group IV Loans representing 25.9% (by Principal Balance) of the Group IV Loans, each Mortgage Loan ~~with~~ which had a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage ~~(exclusive of any riders thereto)~~ was documented by appropriate ~~Xxxxxx Xxx~~FNMA/~~Xxxxxxx Mac~~ FHLMC mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, other than with respect to a Cooperative Loan, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex~~, triplex, fourplex~~, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met ~~the applicable Underwriting Standards~~FNMA or FHLMC requirements, are located in a condominium or planned unit development projects which have received ~~Xxxxxx Mae~~ FNMA or ~~Xxxxxxx Mac~~ FHLMC approval, or are approvable by ~~Xxxxxx Mae~~ FNMA or ~~Xxxxxxx Mac or have otherwise been approved by the Company~~FHLMC; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~68.76% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~1.91% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~29.34% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; approximately 70.51% (by Principal Balance) of the Group II Loans will be secured by owner occupied ~~properties~~Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 2.86% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 26.63% (by Principal Balance) of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 97.52% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.00% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 1.47% (by Principal Balance) of the Group III Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 83.73% (by Principal Balance) of the Group IV Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 3.19% (by Principal Balance) of the Group IV Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 13.08% (by Principal Balance) of the Group IV Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors and none of the Group I Loans, Group III Loans and Group IV Loans will be secured by interests in Cooperative Apartments and one Group II Loan representing 0.13% (by Principal Balance) of the Group II Loans will be secured by interests in Cooperative Apartments; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to ~~Xxxxxx Mae~~ FNMA or ~~Xxxxxxx Mac~~FHLMC; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; by the terms of the Mortgage Notes, however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (xxiv) With respect to ~~each~~ a Mortgage Loan that is a Cooperative Loan, the Cooperative Stock that is pledged as security for the ~~Cooperative~~ Mortgage Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable)~~Note; (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~87.94% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~12.06% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no ~~Mortgage~~ Group I Loan had a current Loan-to-Value Ratio greater than 95%; approximately 86.63% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 13.37% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group II Loan had a current Loan-to-Value Ratio greater than 95%; approximately 92.76% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 7.24% (by Principal Balance) of the Group III Loans had a current Loan- 100 to-Value Ratio greater than 80% but less than or equal to 95% and no Group III Loan had a current Loan-to-Value Ratio greater than 95%; approximately 89.97% (by Principal Balance) of the Group IV Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 10.03% (by Principal Balance) of the Group IV Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group IV Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~53.20% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, approximately 50.12% (by Principal Balance) of the Group II Loans, approximately 77.39% (by Principal Balance) of the Group III Loans and approximately 56.24% (by Principal Balance) of the Group IV Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out ~~refinancings;~~ refinancings and approximately ~~17.69~~46.80% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, approximately 49.88% (by Principal Balance) of the Group II Loans, approximately 22.61% (by Principal Balance) of the Group III Loans and approximately 43.76% (by Principal Balance) of the Group IV Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~34.40%, 39.49%, 74.14% and 29.48% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, Group II Loans, Group III Loans and Group IV Loans, respectively, were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section ~~2.08~~ 2.03 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the ~~Trust~~ Certificateholders in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," ", or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the ~~Trust~~Trustee, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," ", any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel ~~addressed to the Trust and the Trustee~~ reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section ~~2.07~~2.02. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section ~~2.07~~2.02. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the 101 Class R-1 ~~Residual Interest~~ Certificateholders or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 ~~Residual Interest~~Certificateholders.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (PNC Mortgage Securities Corp)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (WaMu Mortgage Pass-Through Certificates, Series 2005-Ar10)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off ~~Date~~ Date, unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) ~~Each~~ All of the Mortgage ~~Loan~~ Loans with a Loan-to-Value ~~Ratio~~ Ratios both as of the Cut-Off Date and as of its respective origination date in excess of 80% ~~was covered~~ were covered, as of the Cut-Off Date, by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement ~~or by a Selling and Servicing Contract~~ have been validly issued and remain in full force and effect, including such policies covering the ~~Company,~~ Company or the ~~Master Servicer or any~~ Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/~~Xxxxxxx~~ Freddie Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac approval, or are approvable by Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~85.18% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~2.54% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~12.28% (by Principal Balance) of the Mortgage Loans will be secured by ~~Mortgaged Properties which were~~ non-owner occupied ~~properties~~Mortgaged Properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~89.87% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~9.58% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 9590% and no approximately 0.56% (by Principal Balance) of the Mortgage Loan had a current Loan-to-Value Ratio greater than 9590%; (~~xxviii~~xxvi) Approximately ~~82.32~~70.31% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~29.69% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~10.63% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (~~xxx~~xxviii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1);; and (~~xxxi~~xxix) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxx) No Mortgage Loan is a High Cost Loan or Covered Loan (as such terms are defined in the Standard & Poor's LEVELS® Glossary in effect on the Closing Date, which is now Version 5.6c Revised, Appendix E, applicable portions of which are attached hereto as Exhibit C) and no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act; (xxxi) With respect to each ~~Mortgage~~ Cooperative Loan, the ~~Periodic Cap shall equal five percentage points on~~ Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxxii) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors’ rights generally and principles of equity) perfected first ~~Adjustment~~ lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor’s pro rata share of the Cooperative’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; and (xxxiii) No Mortgage Loan has a Closing Date ~~and shall equal two percentage points on each Adjustment Date thereafter~~Loan-to-Value Ratio greater than 100%. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the ~~Master~~ Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties (in the case of a breach of the representation set forth in clause (xxxiii) of this Section 2.08, as based on a determination of the applicable Closing Date Loan-to-Value Ratio using such evidence as is reasonably designed to approximate the value of the applicable Mortgaged Property as of the Closing Date) which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the ~~Master~~ Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (~~xxxi~~xxix) or clause (xxx) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects; provided, however, that in the case of a breach of the representation set forth in clause (xxxiii) of this Section 2.08, any such substitution may be made only within two years after the Closing Date. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2005-Ar1)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the PNC Mortgage Loans provided for in Section ~~2.04 herein~~2.01 herein and the conveyance of the Clipper Mortgage Loans provided for in the Clipper Loan Sale Agreement, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; ; (iii) Immediately upon the transfer and assignment contemplated ~~herein~~herein and in the Clipper Loan Sale Agreement, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each PNC Mortgage Loan and Clipper Mortgage Loan, respectively, free and clear of any encumbrance or lien (other than any lien under this Agreement); ; (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; ; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; ; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; ; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; ; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender;~~ ; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; ; (x) As of the Closing Date, each Mortgage Loan ~~that~~ which is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to Faxxxx Xax xr Frxxxxx Xac, and has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was acceptable to Faxxxx Xae or Frxxxxx Xac and qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and ~~inures~~ will be in full force and effect and inure to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Certificateholders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; ; (xi) ~~Each~~ All of the Mortgage ~~Loan~~ Loans with a Loan-to-Value ~~Ratio~~ Ratios as of the ~~Cut-~~Cut- Off Date in excess of 80% ~~was~~ were covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; ; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; ; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; ; (xiv) Each Mortgage ~~(exclusive of any riders thereto)~~ was documented by appropriate ~~Xxxxxx Xxx~~Faxxxx Xae/~~Xxxxxxx Mac~~ Frxxxxx Xac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; ; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, ~~triplex, fourplex,~~ condominium project, townhouse, a planned unit development or a de minimis planned unit development; ; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; ; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met ~~the applicable Underwriting Standards~~Faxxxx Xae or Frxxxxx Xac requirements, are located in a condominium or planned unit development projects which have received ~~Xxxxxx Mae~~ Faxxxx Xae or ~~Xxxxxxx Mac~~ Frxxxxx Xac approval, or are approvable by ~~Xxxxxx Mae~~ Faxxxx Xae or ~~Xxxxxxx Mac~~ Frxxxxx Xac or have otherwise been approved by the Company; ; (xviii) None of the Mortgage Loans ~~are~~ is a Buydown ~~Loans;~~ Loan; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~95.50% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~2.44% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~2.06% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties;~~ investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to ~~Xxxxxx Mae~~ Faxxxx Xae or ~~Xxxxxxx Mac;~~ Frxxxxx Xac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; ; (xxii) All of the Mortgage Loans have due-on-sale clauses; by the terms of the Mortgage Notes, however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note;~~ law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; ; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); ; (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately 98.93% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.08% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately 82.32% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately 17.69% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately 34.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (PNC Mortgage Securities Corp)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/~~Xxxxxxx~~ Freddie Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac approval, or are approvable by Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~94.09% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~5.91% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and ~~approximately 0.14% (by Principal Balance)~~ none of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.77% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.22% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 9590% and no none of the Mortgage ~~Loan~~ Loans had a current Loan-to-Value Ratio greater than 9590%; (xxviii) Approximately ~~82.32~~61.19% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~38.82% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~24.52% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio~~; and~~; (xxxii) ~~With respect to each~~ No Mortgage ~~Loan,~~ Loan is a High Cost Loan or Covered Loan (as such terms are defined in the ~~Periodic Cap shall equal five percentage points~~ Standard & Poor's LEVELS® Glossary in effect on the ~~first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It~~ Closing Date, which is ~~understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery~~ now Version 5.6b Revised, Appendix E, applicable portions of ~~the respective Mortgage Files to the Trustee or the Custodian,~~ which are attached hereto as ~~the case may be~~Exhibit C), and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected no Mortgage Loan originated on or ~~Mortgage Loans or any property acquired in respect thereof from the Trust~~after October 1, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase 2002 through March 6, 2003 is governed by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.Georgia Fair Lending Act; and

Appears in 1 contract

Samples: Pooling and Servicing Agreement (WaMu Mortgage Pass-Through Certificates, Series 2005-Ar4)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~96.07% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~3.89% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.03% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable)~~Note; (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.25% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.75% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~62.17% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~37.83% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~40.75% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxxi) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual Mort Sec Corp Wamu Mo Pa Th Ce Se 02 Ar7)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the PNC Mortgage Loans provided for in Section ~~2.04 herein~~2.01 herein and the conveyance of the Clipper Mortgage Loans provided for in the Clipper Loan Sale Agreement, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates ~~respecting~~ respect- ing which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated ~~herein~~herein and in the Clipper Loan Sale Agreement, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each PNC Mortgage Loan and Clipper Mortgage Loan, respectively, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately 94.82% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 5.04% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 0.14% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately 98.93% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.08% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately 82.32% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately 17.69% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately 34.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (PNC Mortgage Securities Corp Mort Pass Throu Cert Ser 2000 6)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, ~~disclosure and~~ disclosure, recording ~~laws,~~ and predatory and abusive lending ~~laws applicable to the originating lender~~laws; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~97.91% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~2.09% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and ~~approximately 0.14% (by Principal Balance)~~ none of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~95.85% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~4.15% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~78.39% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~21.61% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~86.51% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) No Mortgage Loan secured by Mortgaged Property located in the State of Georgia, that was originated on or after October 1, 2002, is a “home loan” as defined in the Georgia Fair Lending Act; and (xxxi) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass Through Cert Ser 2003-S1)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~94.73% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~5.19% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.08% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.13% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.87% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~55.26% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~44.73% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~29.94% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass THR Certs Ser 2003-Ar12)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the PNC Mortgage Loans provided for in Section ~~2.04 herein~~2.01 herein and the conveyance of the Clipper Mortgage Loans provided for in the Clipper Loan Sale Agreement, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated~~: (i)~~ : The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished~~; (ii)~~ ; As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage~~; (iii)~~ ; Immediately upon the transfer and assignment contemplated ~~herein~~herein and in the Clipper Loan Sale Agreement, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each PNC Mortgage Loan and Clipper Mortgage Loan, respectively, free and clear of any encumbrance or lien (other than any lien under this Agreement)~~; (iv)~~ ; As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days~~; (v)~~ ; As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property~~; (vi)~~ ; As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor~~; (vii)~~ ; As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted~~; (viii)~~ ; Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender; (ix)~~ ; Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company~~; (x)~~ ; As of the Closing Date, each Mortgage Loan ~~that~~ which is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Xxx or Xxxxxxx Mac, and has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and ~~inures~~ will be in full force and effect and inure to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Certificateholders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy~~; (xi) Each~~ ; All of the Mortgage ~~Loan~~ Loans with a Loan-to-Value ~~Ratio~~ Ratios as of the ~~Cut-~~Cut- Off Date in excess of 80% ~~was~~ were covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect~~; (xii)~~ ; As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer~~; (xiii)~~ ; As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies~~; (xiv)~~ ; Each Mortgage ~~(exclusive of any riders thereto)~~ was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company~~; (xv)~~ ; As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, ~~triplex, fourplex,~~ condominium project, townhouse, a planned unit development or a de minimis planned unit development~~; (xvi)~~ ; As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity~~; (xvii)~~ ; As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met ~~the applicable Underwriting Standards~~Xxxxxx Mae or Xxxxxxx Mac requirements, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company~~; (xviii)~~ ; None of the Mortgage Loans ~~are~~ is a Buydown ~~Loans; (xix)~~ Loan; Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~97.01% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~2.59% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.41% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; approximately 68.41% (by Principal Balance) of the Group II Loans will be secured by owner occupied ~~properties;~~ Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 2.15% (xxby Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 29.44% (by Principal Balance) of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; and approximately 92.30% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 2.71% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 4.99% (by Principal Balance) of the Group III Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac~~; (xxi)~~ ; The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards~~; (xxii)~~ ; All of the Mortgage Loans have due-on-sale clauses; by the terms of the Mortgage Notes, however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note; (xxiii)~~ law; The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made~~; (xxiv)~~ ; With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code)~~; (xxv)~~ ; Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement~~; (xxvi)~~ ; With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable); (xxvii)~~ Note; Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~86.60% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~13.40% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and ~~no Mortgage Loan~~ none of the Group I Loans had a current Loan-to-Value Ratio greater than 95%~~; (xxviii) Approximately 82.32~~; approximately 54.49% (by Principal Balance) of the ~~Mortgage~~ Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 42.97% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and approximately 2.53% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 95%; and approximately 76.82% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 23.17% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and none of the Group III Loans had a current Loan-to-Value Ratio greater than 95%; Approximately 24.71% (by Principal Balance) of the Group I Loans, approximately 31.23% (by Principal Balance) of the Group II Loans and approximately 43.46% (by Principal Balance) of the Group III Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~75.29% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, approximately 68.78% (by Principal Balance) of the Group II Loans and approximately 56.54% (by Principal Balance) of the Group III Loans were originated for the purpose of purchasing the Mortgaged Property~~; (xxix)~~ ; Not less than approximately ~~34.34~~72.28%, 48.42% and 23.15% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, Group II Loans and Group III Loans, respectively, were originated under full documentation programs~~; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations~~; and Section 1. ~~860G-2(a)(1~~860G- 2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section ~~2.08~~ 2.03 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the ~~Trust~~ Certificateholders in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall purchase or repurchase, subject to the limitations set forth in the definition of "Purchase Price," ", or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the ~~Trust~~Trustee, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," ", any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel ~~addressed to the Trust and the Trustee~~ reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section ~~2.07~~2.02. Any such purchase or repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section ~~2.07~~2.02. It is understood and agreed that the obligation of the Company to provide such substitution or to make such purchase or repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 ~~Residual Interest~~ Certificateholders or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 ~~Residual Interest~~Certificateholders.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (PNC Mortgage Sec Corp Mort Pass THR Cert Ser 2000-1)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off ~~Date~~ Date, unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of ~~the Cut-Off Date~~ its respective origination date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/~~Xxxxxxx~~ Freddie Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac approval, or are approvable by Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~94.46% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related ~~Mortgagors,~~ Mortgagors and approximately ~~5.04~~5.54% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the ~~Mortgagors and approximately 0.14% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties~~Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.45% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.55% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 9590% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 9590%; (~~xxviii~~xxvi) Approximately ~~82.32~~41.46% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~58.54% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~34.93% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (~~xxx~~xxviii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1);; and (~~xxxi~~xxix) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxx) No Mortgage Loan is a High Cost Loan or Covered Loan (as such terms are defined in the Standard & Poor's LEVELS® Glossary in effect on the Closing Date, which is now Version 5.6 Revised, Appendix E, applicable portions of which are attached hereto as Exhibit C) and no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act; (xxxi) With respect to each ~~Mortgage~~ Cooperative Loan, the ~~Periodic Cap shall equal five percentage points on~~ Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); and (xxxii) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors’ rights generally and principles of equity) perfected first ~~Adjustment Date~~ lien and ~~shall equal two percentage points on each Adjustment Date thereafter~~security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor’s pro rata share of the Cooperative’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (~~xxxi~~xxix) or (xxx) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (WaMu Mortgage Pass-Through Certificates, Series 2004-Ar13)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~99.09% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~0.52% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.39% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~98.14% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~1.85% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~75.65% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~24.36% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~84.60% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx~~) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi~~) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxxi) ~~With respect to each~~ Each Mortgage ~~Loan,~~ Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the ~~Periodic Cap shall equal five percentage points on the first Adjustment Date~~ Code and ~~shall equal two percentage points on each Adjustment Date thereafter~~Treasury Regulations Section 1.860G-2(a)(1). It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (~~xxxi~~xxx) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass Through Certs Ser 2003-S9)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, ~~disclosure and~~ disclosure, recording ~~laws,~~ and predatory and abusive lending ~~laws applicable to the originating lender~~laws; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~97.02% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~2.98% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and none of the Group I Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 99.31% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 0.69% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and none of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; and approximately 99.11% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 0.76% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.13% (by Principal Balance) of the ~~Mortgage~~ Group III Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~98.30% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~1.70% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no ~~Mortgage~~ Group I Loan had a current Loan-to-Value Ratio greater than 95%; approximately 99.07% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 0.92% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group II Loan had a current Loan-to-Value Ratio greater than 95%; and approximately 97.63% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 2.37% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group III Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~89.52% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, approximately 82.13% (by Principal Balance) of the Group II Loans and approximately 76.16% (by Principal Balance) of the Group III Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~10.48% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, approximately 17.88% (by Principal Balance) of the Group II Loans and approximately 23.84% (by Principal Balance) of the Group III Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~72.04%, 82.19% and 44.08% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, Group II Loans and Group III Loans, respectively, were originated under full documentation programs; (xxx) No Mortgage Loan secured by Mortgaged Property located in the State of Georgia, that was originated on or after October 1, 2002, is a “home loan” as defined in the Georgia Fair Lending Act; and (xxxi) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual MSC Mort Pass Through Cert Series 2003-Ms6)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As Except as set forth on Schedule 1 hereto, as of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) ~~Each~~ All of the Mortgage ~~Loan~~ Loans with a Loan-to-Value ~~Ratio~~ Ratios as of the Cut-Off Date in excess of 80% ~~was~~ were covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement ~~or by a Selling and Servicing Contract~~ have been validly issued and remain in full force and effect, including such policies covering the ~~Company,~~ Company or the ~~Master Servicer or any~~ Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/~~Xxxxxxx~~ Freddie Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac approval, or are approvable by Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac or have otherwise been approved by the Company; (xviii) ~~None of the~~ No Mortgage ~~Loans are~~ Loan is a Buydown ~~Loans~~Loan; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~77.58% (by Principal Balance) of the ~~Mortgage~~ Group 1 Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~2.37% (by Principal Balance) of the ~~Mortgage~~ Group 1 Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~20.05% (by Principal Balance) of the ~~Mortgage~~ Group 1 Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; approximately 91.19% (by Principal Balance) of the Group 2 Loans will be secured by owner occupied ~~properties~~Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 3.57% (by Principal Balance) of the Group 2 Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 5.24% (by Principal Balance) of the Group 2 Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; and approximately 87.98% (by Principal Balance) of the Group 3 Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.79% (by Principal Balance) of the Group 3 Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 10.22% (by Principal Balance) of the Group 3 Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~76.15% (by Principal Balance) of the ~~Mortgage~~ Group 1 Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~23.53% (by Principal Balance) of the ~~Mortgage~~ Group 1 Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and approximately 0.33% (by Principal Balance) Group 1 Loan had a current Loan-to-Value Ratio greater than 95%; approximately 98.25% (by Principal Balance) of the Group 2 Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.76% (by Principal Balance) of the Group 2 Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no ~~Mortgage~~ Group 2 Loan had a current Loan-to-Value Ratio greater than 95%; and approximately 96.18% (by Principal Balance) of the Group 3 Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 3.82% (by Principal Balance) of the Group 3 Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group 3 Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~52.22% (by Principal Balance) of the ~~Mortgage~~ Group 1 Loans, approximately 53.80% (by Principal Balance) of the Group 2 Loans and approximately 50.73% (by Principal Balance) of the Group 3 Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~47.78% (by Principal Balance) of the ~~Mortgage~~ Group 1 Loans, approximately 46.19% (by Principal Balance) of the Group 2 Loans and approximately 49.27% (by Principal Balance) of the Group 3 Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~11.84%, 24.31% and 16.99% (by Principal Balance) of the ~~Mortgage~~ Group 1 Loans, Group 2 Loans and Group 3 Loans, respectively, were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is a High Cost Loan or Covered Loan (as such terms are defined in the Standard & Poor's LEVELS® Glossary in effect on the Closing Date, which is now Version 5.6b Revised, Appendix E, applicable portions of which are attached hereto as Exhibit C), and no mortgage loan originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act; (xxxii) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxxiii) ~~With respect to each~~ No Mortgage Loan has a Closing Date Loan~~, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter~~-to-Value Ratio greater than 100%. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the ~~Master~~ Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties (in the case of a breach of the representation set forth in clause (xxxiii) of this Section 2.08, as based on a determination of the applicable Closing Date Loan-to-Value Ratio using such evidence as is reasonably designed to approximate the value of the applicable Mortgaged Property as of the Closing Date) which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the ~~Master~~ Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) or clause (xxxii) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects; provided, however, that in the case of a breach of the representation set forth in clause (xxxiii) of this Section 2.08, any such substitution may be made only within two years after the Closing Date. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2005-6)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~97.39% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~2.61% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and ~~approximately 0.14% (by Principal Balance)~~ none of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately 98.93% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.08% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately 82.32% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately 17.69% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately 34.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass Through Certificates Series 2002 Ar12)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section ~~2.04~~ 2.01 herein, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan ~~that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan ~~that is not a Cooperative Loan~~ is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Xxx or Xxxxxxx Mac, and has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and ~~inures~~ will be in full force and effect and inure to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Certificateholders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each ~~Mortgage Loan~~ Group I and Group III Loan, and approximately 97.8% (by Principal Balance) of the Group II Loans, with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx ~~Xxx~~Mae/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage ~~Loan that is not a Cooperative~~ Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met ~~the applicable Underwriting Standards~~Xxxxxx Mae or Xxxxxxx Mac requirements, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) ~~None~~ Except for four of the Group I Loans and two of the Group II Loans, none of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~96.32% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~3.68% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and none of the Group I Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 98.40% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.60% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and none of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; and approximately 94.48% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 5.14% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.38% (by Principal Balance) of the ~~Mortgage~~ Group III Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable)~~Note; (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~87.88% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~12.22% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no ~~Mortgage~~ Group I Loan had a current Loan-to-Value Ratio greater than 95%; approximately 92.73% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 7.18% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and approximately 0.08% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 95%; and approximately 94.50% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 5.50% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group III Loan had a current Loan-to-Value Ratio greater than 95%; (~~xxviii~~xxvi) Approximately ~~82.32~~38.67% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, approximately 48.76% (by Principal Balance) of the Group II Loans and approximately 46.29% (by Principal Balance) of the Group III Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~61.33% (by Principal Balance) of the ~~Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than~~ Group I Loans, approximately ~~34.34~~51.24% (by Principal Balance) of the ~~Mortgage~~ Group II Loans ~~were originated under full documentation programs;~~ and approximately 53.71% (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.Principal

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mortgage Pass- Through Certificates Series 2001-9)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section ~~2.04~~ 2.01 herein, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan ~~that~~ which is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Mae or Xxxxxxx Mac, and has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and ~~inures~~ will be in full force and effect and inure to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Certificateholders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA ~~guaranty~~guaranty (or, in the case of Loan Group III, was secured by Additional Collateral), and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx ~~Xxx~~Mae/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met ~~the applicable Underwriting Standards~~Xxxxxx Mae or Xxxxxxx Mac requirements, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) ~~None~~ Except for four of the Group I Loans and two of the Group III Loans, none of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~98.52% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~1.34% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 0.14% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms investor properties of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, Mortgagors; approximately ~~98.93~~97.72% (by Principal Balance) of the ~~Mortgage~~ Group II Loans ~~had a current Loan-to-Value Ratio less than or equal to 80%~~will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~1.08~~2.12% (by Principal Balance) of the ~~Mortgage~~ Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately 82.32% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately 17.69% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately 34.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase secured by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.owner occupied Mortgaged

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual Mor Sec Corp Mor Pass Thru Cert Ser 2001-8)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~99.00% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~1.00% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and none of the Group I Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 98.40% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.60% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and none of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 99.26% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 0.74% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and none of the Group III Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; and approximately 98.43% (by Principal Balance) of the Group IV Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.50% (by Principal Balance) of the Group IV Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.06% (by Principal Balance) of the ~~Mortgage~~ Group IV Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~97.45% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~2.55% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no ~~Mortgage~~ Group I Loan had a current Loan-to-Value Ratio greater than 95%; approximately 99.76% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 0.25% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group II Loan had a current Loan-to-Value Ratio greater than 95%; approximately 94.47% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 5.52% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group III Loan had a current Loan-to-Value Ratio greater than 95%; and approximately 96.39% (by Principal Balance) of the Group IV Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 3.61% (by Principal Balance) of the Group IV Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group IV Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~73.93% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, approximately 85.58% (by Principal Balance) of the Group II Loans, approximately 80.63% (by Principal Balance) of the Group III Loans and approximately 70.38% (by Principal Balance) of the Group IV Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~26.07% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, approximately 14.42% (by Principal Balance) of the Group II Loans, approximately 19.38% (by Principal Balance) of the Group III Loans and approximately 29.62% (by Principal Balance) of the Group IV Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~83.84%, 84.71%, 72.29% and 83.12% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, Group II Loans, Group III Loans and Group IV Loans, respectively, were originated under full documentation programs;; and (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass Through Certificates 2002-S7)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off ~~Date~~ Date, unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of ~~the Cut-Off Date~~ its respective origination date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/~~Xxxxxxx~~ Freddie Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac approval, or are approvable by Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~92.62% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~6.42% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.96% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.06% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.94% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 9590% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 9590%; (~~xxviii~~xxvi) Approximately ~~82.32~~60.14% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~39.86% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~30.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (~~xxx~~xxviii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1);; and (~~xxxi~~xxix) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxx) No Mortgage Loan is a High Cost Loan or Covered Loan (as such terms are defined in the Standard & Poor's LEVELS® Glossary in effect on the Closing Date, which is now Version 5.6 Revised, Appendix E, applicable portions of which are attached hereto as Exhibit C) and no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act; (xxxi) With respect to each ~~Mortgage~~ Cooperative Loan, the ~~Periodic Cap shall equal five percentage points on~~ Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); and (xxxii) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors’ rights generally and principles of equity) perfected first ~~Adjustment Date~~ lien and ~~shall equal two percentage points on each Adjustment Date thereafter~~security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor’s pro rata share of the Cooperative’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (~~xxxi~~xxix) or (xxx) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

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

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off ~~Date~~ Date, unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of ~~the Cut-Off Date~~ its respective origination date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/~~Xxxxxxx~~ Freddie Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac approval, or are approvable by Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~85.96% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~2.09% (by Principal Balance) of the Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors, approximately 11.95% (by Principal Balance) of the Mortgage Loans will be secured by Group I Properties which were non-owner occupied properties, approximately 94.35% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 4.42% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~1.22% (by Principal Balance) of the Mortgage Loans will be secured by ~~Mortgaged~~ Group II Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~88.49% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~2.80% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 9590%, approximately 8.71% ~~and no Mortgage~~ Group I Loan had a current Loan-to-Value Ratio greater than 9590%~~; (xxviii) Approximately 82.32~~, approximately 99.23% (by Principal Balance) of the ~~Mortgage~~ Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 0.06% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 90% and approximately 0.71% Group II Loan had a current Loan-to-Value Ratio greater than 90%; (xxvi) Approximately 23.97% (by Principal Balance) of the Group I Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings~~; and~~ , approximately ~~17.69~~76.04% (by Principal Balance) of the ~~Mortgage~~ Group I Loans were originated for the purpose of purchasing the Mortgaged Property, approximately 34.39% (by Principal Balance) of the Group II Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings and approximately 65.60% (by Principal Balance) of the Group II Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~20.41% and 12.33% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and Group II Loans, respectively, were originated under full documentation programs; (~~xxx~~xxviii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1);; and (~~xxxi~~xxix) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxx) No Mortgage Loan is a High Cost Loan or Covered Loan (as such terms are defined in the Standard & Poor's LEVELS® Glossary in effect on the Closing Date, which is now Version 5.6 Revised, Appendix E, applicable portions of which are attached hereto as Exhibit C) and no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act; (xxxi) With respect to each ~~Mortgage~~ Cooperative Loan, the ~~Periodic Cap shall equal five percentage points on~~ Cooperative Stock that is pledged as security for the ~~first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It~~ Cooperative Loan is ~~understood and agreed that the representations and warranties set forth~~ held by a person as a tenant-stockholder (as defined in ~~this~~ Section ~~2.08 shall survive delivery~~ 216 of the ~~respective Mortgage Files to the Trustee or the Custodian,~~ Code) in a cooperative housing corporation (as ~~the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any~~ defined in Section 216 of the ~~Company~~Code); (xxxii) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the ~~Master Servicer,~~ enforcement of creditors’ rights generally and principles of equity) perfected first lien and security interest in the ~~Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of~~ related Cooperative Stock securing the related Mortgage ~~Loans or the interests~~ Note, subject only to (a) liens of the ~~Trust in~~ Cooperative for unpaid assessments representing the ~~related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach~~ Mortgagor’s pro rata share of the ~~representation set forth in clause~~ Cooperative’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject and (~~xxxi~~b) ~~of this Section 2.08 shall be deemed~~ other matters to which like collateral is commonly subject which do not materially ~~and adversely affect~~ interfere with the ~~value~~ benefits of the ~~related Mortgage Loans or~~ security intended to be provided by the ~~interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase,~~ Security Agreement; (xxxiii) No Group I Loan is subject to the ~~limitations set forth~~ Home Ownership and Equity Protection Act of 1994 or 12 C.F.R. Section 226.32 (Regulation Z), a “high-cost” loan or a “predatory” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without limiting the generality of the foregoing, is a “covered” loan under the laws of the states of California, Colorado, New Jersey (excluding home loans that were originated between November 26, 2003 and July 7, 2004 defined as “covered home loans” pursuant to clause (1) of the definition of ~~"Purchase Price," or substitute for~~ that term in the ~~affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust~~New Jersey Ownership Security Act of 2002), unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Washington, D.C. (excluding home loans defined under Section ~~860G(a)(4~~7(B) of the ~~Code. Such substitution shall be made~~ Home Loan Protection Act of 2002), or Ohio;; (xxxiv) No Group I Loan is secured by a Mortgaged Property located in the ~~manner~~ State of Georgia which was originated during the period commencing on October 1, 2002 and ~~within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price~~ending on March 7, ~~if applicable, but shall not be subject~~ 2003; (xxxv) No proceeds of a Group I Loan have been used to ~~the time limits, set forth in Section 2.07. It is understood and agreed that the obligation~~ finance any single‑premium credit insurance policy; (xxxvi) None of the ~~Company~~ Group I Loans imposes a prepayment penalty term in excess of three years from the date of origination of such Mortgage Loan; (xxxvii) With respect to ~~provide such substitution or~~ each Group I Loan, all required information regarding each Mortgagor’s credit file, including favorable and unfavorable information, has been furnished to ~~make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired~~ credit reporting agencies in ~~respect thereof as to which a breach has occurred and is continuing shall constitute~~ compliance with the ~~sole remedy respecting such breach available to the Holders~~ provisions of the ~~REMIC I Regular Interests~~ Fair Credit Reporting Act and the ~~Class R-1 Residual Interest~~ applicable implementing regulations; (xxxviii) For each Group I Loan, the Servicer will fully furnish, in accordance with the Fair Credit Reporting Act and its implementing regulations, accurate and complete information on its borrower credit files to Equifax, Experian, Trans Union Credit Information Company and Innovis Data Solutions (or their successors), on a monthly basis; and (xxxix) No Group I Loan requires the ~~Trustee on behalf~~ Mortgagor to submit to arbitration to resolve any dispute arising out of ~~the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest~~or relating in any way to such Mortgage Loan.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (WaMu Mortgage Pass-Through Certificates, Series 2005-Ar2)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/~~Xxxxxxx~~ Freddie Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac approval, or are approvable by Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~94.07% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related ~~Mortgagors,~~ Mortgagors and approximately ~~5.04~~5.93% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the ~~Mortgagors and approximately 0.14% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties~~Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.72% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.28% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 9590% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 9590%; (xxviii) Approximately ~~82.32~~63.44% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~36.55% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~30.15% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; (xxxii) No Mortgage Loan is a High Cost Loan or Covered Loan (as such terms are defined in the Standard & Poor's LEVELS® Glossary in effect on the Closing Date, which is now Version 5.6b Revised, Appendix E, applicable portions of which are attached hereto as Exhibit C) and no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act; and (~~xxxii~~xxxiii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) or (xxxii) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the ~~REMIC I Regular Interests and the Class R-1 Residual Interest~~ Certificates or the Trustee on behalf of the Holders of the ~~REMIC I Regular Interests and the Class R-1 Residual Interest~~Certificates.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (WaMu Mortgage Pass-Through Certificates, Series 2005-Ar3)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/~~Xxxxxxx~~ Freddie Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac approval, or are approvable by Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~95.66% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related ~~Mortgagors,~~ Mortgagors and approximately ~~5.04~~4.34% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the ~~Mortgagors and approximately 0.14% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties~~Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.78% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.22% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~66.44% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~33.56% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~25.50% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; (xxxii) No Mortgage Loan is a High Cost Loan or Covered Loan (as such terms are defined in the Standard & Poor's LEVELS® Glossary in effect on the Closing Date, which is now Version 5.6 Revised, Appendix E, applicable portions of which are attached hereto as Exhibit C) and no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act; and (~~xxxii~~xxxiii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) or (xxxii) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (WaMu Mortgage Pass-Through Certificates, Series 2004-Ar14)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section ~~2.04~~ 2.01 herein, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan ~~that~~ which is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Mae or Xxxxxxx Mac, and has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Certificateholders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA ~~guaranty~~guaranty (or was secured by Additional Collateral), and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx ~~Xxx~~Mae/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met ~~the applicable Underwriting Standards~~Xxxxxx Mae or Xxxxxxx Mac requirements, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~95.78% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~3.87% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.35% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; and approximately 98.42% (by Principal Balance) of the Group II Loans will be secured by owner occupied ~~properties~~Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.41% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 0.17% (by Principal Balance) of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable)~~Note; (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~95.04% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~1.48% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and ~~no Mortgage Loan~~ approximately 3.48% (by Principal Balance) of the Group I Loans had a current Loan-to-Value Ratio greater than 95%; and approximately 93.64% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 5.21% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and approximately 1.16% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~70.60% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and approximately 63.42% (by Principal Balance) of the Group II Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~29.39% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and approximately 35.58% (by Principal Balance) of the Group II Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~77.36% and 87.57% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and Group II Loans, respectively, were originated under full documentation programs; (xxx) Each Additional Collateral Loan is covered by a Surety Bond; (xxxi) Each Additional Collateral Loan is secured solely by the related Mortgaged Property and by a securities account owned by the related Mortgagor or a guarantor; and (xxxii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section ~~2.08~~ 2.03 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the ~~Trustee~~ Trustee, the Certificate Insurer or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the ~~Trust~~ Certificateholders or the Certificate Insurer in the related Mortgage Loans, the Company, the Master Servicer, the ~~Trustee~~ Trustee, the Certificate Insurer or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the ~~Trust~~Trustee, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel ~~addressed to the Trust and the Trustee~~ reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section ~~2.07~~2.02. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section ~~2.07~~2.02. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 ~~Residual Interest~~ Certificateholders or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 ~~Residual Interest~~Certificateholders.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass Through Cert Series 2001-S8)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As Except as set forth on Schedule 1 hereto, as of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) ~~Each~~ All of the Mortgage ~~Loan~~ Loans with a Loan-to-Value ~~Ratio~~ Ratios as of the Cut-Off Date in excess of 80% ~~was~~ were covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement ~~or by a Selling and Servicing Contract~~ have been validly issued and remain in full force and effect, including such policies covering the ~~Company,~~ Company or the ~~Master Servicer or any~~ Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/~~Xxxxxxx~~ Freddie Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac approval, or are approvable by Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac or have otherwise been approved by the Company; (xviii) ~~None of the~~ No Mortgage ~~Loans are~~ Loan is a Buydown ~~Loans~~Loan; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~89.19% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~2.30% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~8.51% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~94.96% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~4.95% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no approximately 0.09% (by Principal Balance) of the Mortgage ~~Loan~~ Loans had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~56.09% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~43.90% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~26.32% (by Principal Balance) of the Mortgage ~~Loans~~ Loans, respectively, were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is a High Cost Loan or Covered Loan (as such terms are defined in the Standard & Poor's LEVELS® Glossary in effect on the Closing Date, which is now Version 5.6b Revised, Appendix E, applicable portions of which are attached hereto as Exhibit C), and no mortgage loan originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act; (xxxii) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxxiii) ~~With respect to each~~ No Mortgage Loan has a Closing Date Loan~~, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter~~-to-Value Ratio greater than 100%. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the ~~Master~~ Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties (in the case of a breach of the representation set forth in clause (xxxiii) of this Section 2.08, as based on a determination of the applicable Closing Date Loan-to-Value Ratio using such evidence as is reasonably designed to approximate the value of the applicable Mortgaged Property as of the Closing Date) which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the ~~Master~~ Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) or clause (xxxii) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects; provided, however, that in the case of a breach of the representation set forth in clause (xxxiii) of this Section 2.08, any such substitution may be made only within two years after the Closing Date. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual Mortgage Pass-Through Certificates, WMALT Series 2005-5)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) ~~Each~~ All of the Mortgage ~~Loan~~ Loans with a Loan-to-Value ~~Ratio~~ Ratios both as of the Cut-Off Date and as of its respective origination date in excess of 80% ~~was covered~~ were covered, as of the Cut-Off Date, by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement ~~or by a Selling and Servicing Contract~~ have been validly issued and remain in full force and effect, including such policies covering the ~~Company,~~ Company or the ~~Master Servicer or any~~ Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/~~Xxxxxxx~~ Freddie Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac approval, or are approvable by Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~94.64% (by Principal Balance) of the ~~Mortgage~~ Group 1 Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~5.36% (by Principal Balance) of the ~~Mortgage~~ Group 1 Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and ~~approximately 0.14% (by Principal Balance)~~ none of the ~~Mortgage~~ Group 1 Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; and approximately 99.23% (by Principal Balance) of the Group 2 Loans will be secured by owner occupied ~~properties~~Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 0.77% (by Principal Balance) of the Group 2 Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and none of the Group 2 Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.96% (by Principal Balance) of the ~~Mortgage~~ Group 1 Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.04% (by Principal Balance) of the ~~Mortgage~~ Group 1 Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 9590% and no ~~Mortgage~~ Group 1 Loan had a current Loan-to-Value Ratio greater than 9590%~~; (xxviii) Approximately 82.32~~; and approximately 100% (by Principal Balance) of the ~~Mortgage~~ Group 2 Loans had a current Loan-to-Value Ratio less than or equal to 80% and no Group 2 Loan had a current Loan-to-Value Ratio greater than 80%; (xxviii) Approximately 67.15% (by Principal Balance) of the Group 1 Loans and approximately 67.13% (by Principal Balance) of the Group 2 Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~32.85% (by Principal Balance) of the ~~Mortgage~~ Group 1 Loans and approximately 32.87% (by Principal Balance) of the Group 2 Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~25.04% and 88.57% (by Principal Balance) of the ~~Mortgage~~ Group 1 Loans and Group 2 Loans, respectively, were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9), without reliance on the provisions of Treasury Regulation Section 1.860G-2(a)(3) or Treasury Regulation Section 1.860G-2(f)(2) or any other provision that would allow a Mortgage Loan to be treated as a "qualified mortgage" notwithstanding its failure to meet the requirements of Section 860G(a)(3)(A) of the Code and Treasury Regulation Section 1.860G-2(a)(1), (2), (4), (5), (6), (7) and (9); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio~~; and~~; (xxxii) No Mortgage Loan is a High Cost Loan or Covered Loan (as such terms are defined in the Standard & Poor's LEVELS® Glossary in effect on the Closing Date, which is now Version 5.6c Revised, Appendix E, applicable portions of which are attached hereto as Exhibit C) and no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act; (xxxiii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter; and (xxxiv) No Mortgage Loan has a Closing Date Loan-to-Value Ratio greater than 100%. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the ~~Master~~ Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties (in the case of a breach of the representation set forth in clause (xxxiv) of this Section 2.08, as based on a determination of the applicable Closing Date Loan-to-Value Ratio using such evidence as is reasonably designed to approximate the value of the applicable Mortgaged Property as of the Closing Date) which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the ~~Master~~ Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) or (xxxii) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (WaMu Mortgage Pass-Through Certificates, Series 2005-Ar12)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section ~~2.04~~ 2.01 herein, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan ~~that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage ~~Loan that is not a Cooperative~~ Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~98.12% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~1.74% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 0.14% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; and approximately 95.93% (by Principal Balance) of the Group II Loans will be secured by owner occupied ~~properties~~Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 3.77% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 0.30% (by Principal Balance) of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable)~~Note; (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~93.84% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~6.16% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no ~~Mortgage~~ Group I Loan had a current Loan-to-Value Ratio greater than 95%; and approximately 98.17% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.83% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group II Loan had a current Loan-to-Value Ratio greater than 95%; (~~xxviii~~xxvi) Approximately ~~82.32~~56.65% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and approximately 71.03% (by Principal Balance) of the Group II Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~43.35% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and approximately 28.97% (by Principal Balance) of the Group II Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~87.80% and 84.84% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and Group II Loans, respectively, were originated under full documentation programs;; and (~~xxx~~xxviii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section ~~2.08~~ 2.03 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the ~~Trust~~ Certificateholders in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the ~~Trust~~Trustee, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee ~~an Opinion of Counsel addressed to the Trust~~ and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.77

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass-Through Certificates Series 2001-S10)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section ~~2.04~~ 2.01 herein, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated~~: (i)~~ : The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (iii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special ~~assessments~~assess- ments; (b) covenants, conditions and restrictions, rights of way, ~~easements~~ ease- ments and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (~~iii~~ii) Immediately upon the transfer and assignment contemplated herein, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iviii) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (viv) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (viv) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (~~vii~~vi) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (~~viii~~vii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ixviii) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (xix) As of the Closing Date, each Mortgage Loan ~~that~~ which is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Xxx or Xxxxxxx Mac, and has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the ~~exceptions~~ excep- tions set forth in such policy. Such policy is in full force and effect and ~~inures~~ will be in full force and effect and inure to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Certificate- holders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xix) Each Mortgage Loan with a Loan-to-Value Ratio as of the ~~Cut-~~Cut- Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (~~xii~~xi) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (~~xiii~~xii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (~~xiv~~xiii) Each Mortgage (exclusive of any riders thereto) was ~~documented~~ docu- mented by appropriate Xxxxxx ~~Xxx~~Mae/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xvxiv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, ~~triplex, fourplex,~~ condominium project, townhouse, a planned unit development or a ~~de minimis~~ deminimis planned unit development; (~~xvi~~xv) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such ~~enforcement~~ enforce- ment may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (~~xvii~~xvi) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met ~~the applicable Underwriting Standards~~Xxxxxx Mae or Xxxxxxx Mac requirements, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (~~xviii~~xvii) ~~None~~ Except for six of the Group I Loans and three of the Group III Loans, none of the Mortgage Loans are Buydown Loans; (~~xix~~xviii) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, ~~approximately 94.82~~approxi- mately 96.80% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~2.95% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.25% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; approximately 93.70% (by Principal Balance) of the Group II Loans will be secured by owner occupied ~~properties~~Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.66% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 4.65% (by Principal Balance) of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; and approximately 99.03% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 0.40% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 0.58% (by Principal Balance) of the Group III Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; (xxxix) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (~~xxi~~xx) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (~~xxii~~xxi) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (~~xxiii~~xxii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (~~xxiv~~xxiii) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (~~xxv~~xxiv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (~~xxvi~~xxv) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable)~~Note; (~~xxvii~~xxvi) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~88.35% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~11.65% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no ~~Mortgage~~ Group I Loan had a current Loan-to-Value Ratio greater than 95%; approximately 94.53% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 5.47% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group II Loan had a current Loan-to-Value Ratio greater than 95%; and approximately 91.79% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 8.21% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group III Loan had a current Loan-to-Value Ratio greater than 95%; (~~xxviii~~xxvii) Approximately ~~82.32~~29.85% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, approximately 39.26% (by Principal Balance) of the Group II Loans and approximately 21.13% (by Principal Balance) of the Group III Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~70.15% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, approximately 60.74% (by Principal Balance) of the Group II Loans and approximately 78.87% (by Principal Balance) of the Group III Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxviii) Not less than approximately ~~34.34~~80.85%, 53.55% and 80.68% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, Group II Loans and Group III Loans, respectively, were originated under full documentation programs;; and (~~xxx~~xxix) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section ~~2.08~~ 2.03 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this ~~Agreement~~Agree- ment. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing ~~representations~~ represen- tations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the ~~Trust~~ Certificate- holders in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," ", or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the ~~Trust~~Trustee, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," ", any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel ~~addressed to the Trust and the Trustee~~ reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section ~~2.07~~2.02. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.forth

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Mortgage Pass Through Certificates Series 2001-1)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~96.40% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~3.57% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.04% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were non-owner occupied ~~properties~~properties of the related Mortgagors; and approximately 96.53% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 3.47% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and none of the Group II Loans will be secured by Mortgaged Properties which were non-owner occupied properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.20% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.81% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and ~~no Mortgage Loan~~ none of the Group I Loans had a current Loan-to-Value Ratio greater than 95%; and approximately 99.87% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 0.12% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and none of the Group II Loans had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~76.65% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and approximately 84.18% (by Principal Balance) of the Group II Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~23.35% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and approximately 15.83% (by Principal Balance) of the Group II Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~39.77% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and approximately 38.04% (by Principal Balance) of the Group II Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual Mort Sec Corp Wamu Mo Ps Th Ce Se 03 Ar9)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section ~~2.04~~ 2.01 herein, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan ~~that~~ which is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Mae or Xxxxxxx Mac, and has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately 94.82% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 5.04% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 0.14% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately 98.93% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.08% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately 82.32% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately 17.69% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately 34.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.such

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual Mortgage Sec Corp Mor Pas Thru Cert 2001-7)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~98.35% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~1.17% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.48% ~~(by Principal Balance)~~ of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~97.94% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~2.06% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~73.77% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~26.23% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~87.75% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs;; and (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the ~~Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest~~ Certificateholders or the Trustee on behalf of the ~~Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.~~Certificateholders. 50

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual MSC Mortgage Pass THR Cert Ser 2002 Ms12)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the PNC Mortgage Loans provided for in Section ~~2.04 herein~~2.01 herein and the conveyance of the Clipper Mortgage Loans provided for in the Clipper Loan Sale Agreement, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated ~~herein~~herein and in the Clipper Loan Sale Agreement, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each PNC Mortgage Loan and Clipper Mortgage Loan, respectively, free and clear of any encumbrance or lien (other than any lien under this Agreement); ; (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; ; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; ; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; ; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; ; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender;~~ ; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; ; (x) As of the Closing Date, each Mortgage Loan ~~that~~ which is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to Fannie Mae or Freddie Mac, and has been ~~issued by~~issuxx xx, ~~and~~ xxx is ~~the valid~~ xxx xxxid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was acceptable to Fannie Mae or Freddie Mac and qualified to ~~do business~~ dx xxxxness in ~~the state~~ xxx xxxte in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and ~~inures~~ will be in full force and effect and inure to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Certificateholders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; ; (xi) ~~Each Mortgage Loan~~ All of the Group I Loans, not less than approximately 89.1% (by Principal Balance) of the Group II Loans, not less than approximately 92.1% (by Principal Balance) of the Group III Loans and not less than approximately 93.5% (by Principal Balance) of the Group IV Loans with a Loan-to-Value ~~Ratio~~ Ratios as of the Cut-Off Date in excess of 80% ~~was~~ were covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; ; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; ; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; ; (xiv) Each Mortgage ~~(exclusive of any riders thereto)~~ was documented by appropriate ~~Xxxxxx Xxx~~Fannie Mae/~~Xxxxxxx~~ Freddie Mac mortgage instruments ~~in effect at the time~~ xx xxxect ax xxx xime of origination, or other instruments approved by the Company; ; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, ~~triplex, fourplex,~~ condominium project, townhouse, a planned unit development or a de minimis planned unit development; ; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; ; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met ~~the applicable Underwriting Standards~~Fannie Mae or Freddie Mac requirements, are ~~located~~ xxxxxxd in a ~~condominium~~ cxxxxxxxium or planned unit development projects which have received ~~Xxxxxx~~ Fannie Mae or ~~Xxxxxxx~~ Freddie Mac approval, or are ~~approvable~~ axxxxxxble by ~~Xxxxxx Mae~~ Fxxxxx Xae or ~~Xxxxxxx~~ Freddie Mac or have otherwise ~~been approved by the~~ xxxx xpproved xx xxx Company; ; (xviii) ~~None~~ One of the ~~Mortgage~~ Group I Loans, one of the Group III Loans and none of the Group II and Group IV Loans are Buydown Loans; ; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~97.01% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~1.92% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~1.07% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; approximately 89.48% (by Principal Balance) of the Group II Loans will be secured by owner occupied ~~properties;~~ Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.05% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 9.48% (by Principal Balance) of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 95.37% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.07% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which were 115 second or vacation homes of the Mortgagors and approximately 3.56% (by Principal Balance) of the Group III Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; and approximately 85.77% (by Principal Balance) of the Group IV Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 4.64% (by Principal Balance) of the Group IV Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 9.59% (by Principal Balance) of the Group IV Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to ~~Xxxxxx~~ Fannie Mae or ~~Xxxxxxx~~ Freddie Mac; ; (xxi) The ~~Mortgage~~ Morxxxxx Loans ~~have been~~ haxx xxxx underwritten substantially in accordance with the applicable Underwriting Standards; ; (xxii) All of the Mortgage Loans have due-on-sale clauses; by the terms of the Mortgage Notes, however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note;~~ law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; ; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); ; (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately 98.93% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.08% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately 82.32% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately 17.69% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately 34.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (PNC Mortgage Securities Corp Mort Pass THR Cert Ser 1999-9)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage ~~Loan that is not a Cooperative~~ Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~98.65% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~0.53% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.83% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; approximately 97.06% (by Principal Balance) of the Group II Loans will be secured by owner occupied ~~properties~~Mortgaged Properties which are the primary residences of the related Mortgagors, none of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 2.94% (by Principal Balance) of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 99.49% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 0.21% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 0.29% (by Principal Balance) of the Group III Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; and approximately 96.73% (by Principal Balance) of the Group IV Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.95% (by Principal Balance) of the Group IV Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 1.32% (by Principal Balance) of the Group IV Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ adjustable-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.81% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.19% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no ~~Mortgage~~ Group I Loan had a current Loan-to-Value Ratio greater than 95%~~; (xxviii) Approximately 82.32~~; approximately 99.05% (by Principal Balance) of the ~~Mortgage~~ Group II Loans ~~were originated for the purpose of refinancing existing mortgage debt~~had a current Loan-to-Value Ratio less than or equal to 80%, ~~including cash-out refinancings; and~~ approximately ~~17.69~~0.95% (by Principal Balance) of the ~~Mortgage~~ Group II Loans ~~were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not~~ had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group II Loan had a current Loan-to-Value Ratio greater than 95%; approximately ~~34.34~~99.79% (by Principal Balance) of the ~~Mortgage~~ Group III Loans ~~were originated under full documentation programs;~~ had a current Loan-to-Value Ratio less than or equal to 80%, approximately 0.22% (~~xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A~~by Principal Balance) of the ~~Code~~ Group III Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and ~~Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage~~ no Group III Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.had

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual MSC Mortgage Pass THR Cert Ser 2002-Ar2)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~95.83% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~4.17% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and ~~approximately 0.14% (by Principal Balance)~~ none of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.38% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.62% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~80.84% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~19.16% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~41.79% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass Through Certificates Series 2003-Ar5)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~95.49% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~4.51% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and ~~approximately 0.14% (by Principal Balance) of the~~ no Mortgage ~~Loans~~ Loan will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx ~~Mae~~ Xxx or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.49% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.51% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 9590% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 9590%; (xxviii) Approximately ~~82.32~~57.38% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~42.62% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~23.72% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass-Through Certificates Series 2004-Ar1)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) ~~Each Mortgage Loan~~ Approximately 96.5% (by Principal Balance) of the Group I Loans, approximately 90.5% (by Principal Balance) of the Group II Loans and approximately 85.1% (by Principal Balance) of the Group III Loans with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% ~~was~~ were covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity;; 77 (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) ~~None~~ Except for six of the Group I Loans, three of the Group II Loans and five of the Group III Loans, none of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~97.75% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~2.25% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and none of the Group I Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 97.39% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 2.42% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.20% (by Principal Balance) of the ~~Mortgage~~ Group II Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; and approximately 98.09% (by Principal Balance) of the Group III Loans will be secured by owner occupied ~~properties~~Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.84% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 0.08% (by Principal Balance) of the Group III Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ adjustable-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable)~~Note; (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~88.94% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~11.06% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no ~~Mortgage~~ Group I Loan had a current Loan-to-Value Ratio greater than 95%; approximately 95.13% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 4.86% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group II Loan had a current Loan-to-Value Ratio greater than 95%; and approximately 96.09% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 3.68% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and approximately 0.23% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~41.94% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, approximately 58.14% (by Principal Balance) of the Group II Loans and approximately 55.07% (by Principal Balance) of the Group III Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~58.06% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, approximately 41.87% (by Principal Balance) of the Group II Loans, and approximately 44.92% (by Principal Balance) of the Group III Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~92.13%, 88.97% and 85.15% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, Group II Loans and Group III Loans, respectively, were originated under full documentation programs;; and (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual MSC Mortgage Pass-THR Cert Ser 2002-Ar1)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the PNC Mortgage Loans provided for in Section ~~2.04 herein~~2.01 herein and the conveyance of the Clipper Mortgage Loans provided for in the Clipper Loan Sale Agreement, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished~~; (ii)~~ ; As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage~~; (iii)~~ ; Immediately upon the transfer and assignment contemplated ~~herein~~herein and in the Clipper Loan Sale Agreement, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each PNC Mortgage Loan and Clipper Mortgage Loan, respectively, free and clear of any encumbrance or lien (other than any lien under this Agreement)~~; (iv)~~ ; As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days~~; (v)~~ ; As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property~~; (vi)~~ ; As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor~~; (vii)~~ ; As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted~~; (viii)~~ ; Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender; (ix)~~ ; Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company~~; (x)~~ ; As of the Closing Date, each Mortgage Loan ~~that~~ which is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Xxx or Xxxxxxx Mac, and has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and ~~inures~~ will be in full force and effect and inure to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Certificateholders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; ; Not less than approximately 99.99% (xiby Principal Balance) ~~Each Mortgage Loan~~ of the Group I Loans, not less than approximately 99.2% (by Principal Balance) of the Group II Loans, not less than approximately 77.9% (by Principal Balance) of the Group III Loans and all of the Group IV Loans with a Loan-to-Value ~~Ratio~~ Ratios as of the Cut-Off Date in excess of 80% ~~was~~ were covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect~~; (xii)~~ ; As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer~~; (xiii)~~ ; As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies~~; (xiv)~~ ; Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx ~~Xxx~~Mae/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company~~; (xv)~~ ; As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, ~~triplex, fourplex,~~ condominium project, townhouse, a planned unit development or a de minimis planned unit development~~; (xvi)~~ ; As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity~~; (xvii)~~ ; As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met ~~the applicable Underwriting Standards~~Xxxxxx Mae or Xxxxxxx Mac requirements, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company~~; (xviii) None~~ ; One of the ~~Mortgage~~ Group I Loans and none of the Group II, Group III and Group IV Loans are Buydown Loans~~; (xix)~~ ; Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~68.68% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~0.27% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~31.05% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; approximately 93.11% (by Principal Balance) of the Group II Loans will be secured by owner occupied ~~properties;~~ Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.04% (xxby Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 5.84% (by Principal Balance) of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 97.13% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.88% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 0.99% (by Principal Balance) of the Group III Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; and approximately 91.70% (by Principal Balance) of the Group IV Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 6.85% (by Principal Balance) of the Group IV Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 1.44% (by Principal Balance) of the Group IV Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac~~; (xxi)~~ ; The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards~~; (xxii)~~ ; All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note; (xxiii)~~ law; The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made~~; (xxiv)~~ ; With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code)~~; (xxv)~~ ; Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement~~; (xxvi)~~ ; With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable); (xxvii)~~ Note; Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~36.03% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~63.25% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and approximately 0.72% (by Principal Balance) of the Group I Loans had a current Loan-to-Value Ratio greater than 95%; approximately 82.28% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 17.72% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no ~~Mortgage~~ Group II Loan had a current Loan-to-Value Ratio greater than 95%~~; (xxviii) Approximately 82.32~~; approximately 92.09% (by Principal Balance) of the ~~Mortgage~~ Group III Loans had a current Loan-to- Value Ratio less than or equal to 80%, approximately 7.52% (by Principal Balance) of the Group III Loans had a current Loan-to- Value Ratio greater than 80% but less than or equal to 95% and approximately 0.39% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio greater than 95%; and approximately 94.72% (by Principal Balance) of the Group IV Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 4.61% (by Principal Balance) of the Group IV Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and approximately 0.68% (by Principal Balance) of the Group IV Loans had a current Loan-to-Value Ratio greater than 95%; Approximately 44.01% (by Principal Balance) of the Group I Loans, approximately 39.00% (by Principal Balance) of the Group II Loans, approximately 40.41% (by Principal Balance) of the Group III Loans, and approximately 52.09% (by Principal Balance) of the Group IV Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~55.98% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, approximately 61.00% (by Principal Balance) of the Group II Loans, approximately 59.59% (by Principal Balance) of the Group III Loans and approximately 47.91% (by Principal Balance) of the Group IV Loans were originated for the purpose of purchasing the Mortgaged Property~~; (xxix)~~ ; Not less than approximately ~~34.34~~56.44%, 33.53%, 85.08% and 58.44% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, Group II Loans, Group III Loans and Group IV Loans, respectively, were originated under full documentation programs~~; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations~~; and Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section ~~2.08~~ 2.03 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the ~~Trust~~ Certificateholders in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall purchase or repurchase, subject to the limitations set forth in the definition of "Purchase Price," ", or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the ~~Trust~~Trustee, unless it has cured such breach in all material respects. After the end of the ~~three-~~three- month period beginning on the "start-up day," ", any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel ~~addressed to the Trust and the Trustee~~ reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section ~~2.07~~2.02. Any such purchase or repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section ~~2.07~~2.02. It is understood and agreed that the obligation of the Company to provide such substitution or to make such purchase or repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 ~~Residual Interest~~ Certificateholders or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 ~~Residual Interest~~Certificateholders.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (PNC Mortgage Securities Corp Mort Pass Thru Cert Ser 2000 4)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the PNC Mortgage Loans provided for in Section ~~2.04 herein~~2.01 herein and the conveyance of the Clipper Mortgage Loans provided for in the Clipper Loan Sale Agreement, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished~~; (ii)~~ ; As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage~~; (iii)~~ ; Immediately upon the transfer and assignment contemplated ~~herein~~herein and in the Clipper Loan Sale Agreement, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each PNC Mortgage Loan and Clipper Mortgage Loan, respectively, free and clear of any encumbrance or lien (other than any lien under this Agreement)~~; (iv)~~ ; As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days~~; (v)~~ ; As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property~~; (vi)~~ ; As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor~~; (vii)~~ ; As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted~~; (viii)~~ ; Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender; (ix)~~ ; Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company~~; (x)~~ ; As of the Closing Date, each Mortgage Loan ~~that~~ which is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Xxx or Xxxxxxx Mac, and has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was acceptable to Xxxxxx Mae or Xxxxxxx Mac and qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and ~~inures~~ will be in full force and effect and inure to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Certificateholders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy~~; (xi) Each~~ ; All of the Mortgage ~~Loan~~ Loans with a Loan-to-Value ~~Ratio~~ Ratios as of the Cut-Off Date in excess of 80% ~~was~~ were covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect~~; (xii)~~ ; As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer~~; (xiii)~~ ; As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies~~; (xiv)~~ ; Each Mortgage ~~(exclusive of any riders thereto)~~ was documented by appropriate Xxxxxx ~~Xxx~~Mae/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company~~; (xv)~~ ; As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, ~~triplex, fourplex,~~ condominium project, townhouse, a planned unit development or a de minimis planned unit development~~; (xvi)~~ ; As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity~~; (xvii)~~ ; As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met ~~the applicable Underwriting Standards~~Xxxxxx Mae or Xxxxxxx Mac requirements, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company~~; (xviii) None~~ ; One of the ~~Mortgage~~ Group II Loans ~~are~~ and none of the Group I and Group III Loans is a Buydown ~~Loans; (xix)~~ Loan; Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~86.55% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~5.48% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~7.97% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms investor properties of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, Mortgagors; approximately ~~98.93~~79.07% (by Principal Balance) of the ~~Mortgage~~ Group II Loans ~~had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.08% (~~will be secured by ~~Principal Balance) of~~ owner occupied Mortgaged Properties which are the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately 82.32% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately 17.69% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately 34.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value primary residences of the related ~~Mortgage Loans or the interests of the Trust in the related Mortgage Loans~~Mortgagors, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.approximately

Appears in 1 contract

Samples: Pooling and Servicing Agreement (PNC Mortgage Securities Corp Mort Pass THR Cert Ser 1999-12)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan ~~that is not a Cooperative Loan~~ is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan ~~that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~98.09% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~1.91% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and none of the Group I Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 98.48% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.52% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and none of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 98.15% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 0.87% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.98% (by Principal Balance) of the ~~Mortgage~~ Group III Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; and approximately 98.14% (by Principal Balance) of the Group IV Loans will be secured by owner occupied ~~properties~~Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.86% (by Principal Balance) of the Group IV Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and none of the Group IV Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.42% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.57% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no ~~Mortgage~~ Group I Loan had a current Loan-to-Value Ratio greater than 95%; approximately 97.87% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 2.14% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group II Loan had a current Loan-to-Value Ratio greater than 95%; approximately 99.11% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 0.90% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group III Loan had a current Loan-to-Value Ratio greater than 95%; and approximately 96.34% (by Principal Balance) of the Group IV Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 3.66% (by Principal Balance) of the Group IV Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group IV Loan had a current Loan-to-Value Ratio greater than 95%; (~~xxviii~~xxvi) Approximately ~~82.32~~94.21% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, approximately 82.41% (by Principal Balance) of the Group II Loans, approximately 86.63% (by Principal Balance) of the Group III Loans and approximately 82.04% (by Principal Balance) of the Group IV Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~5.78% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, approximately 17.59% (by Principal Balance) of the Group II Loans, approximately 13.37% (by Principal Balance) of the Group III Loans and approximately 17.95% (by Principal Balance) of the Group IV Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~82.25%, 86.65%, 84.77% and 84.28% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, Group II Loans, Group III Loans and Group IV Loans, respectively, were originated under full documentation programs; (~~xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi~~xxviii) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxix) ~~With respect to each~~ Each Mortgage ~~Loan,~~ Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the ~~Periodic Cap shall equal five percentage points on the first Adjustment Date~~ Code and ~~shall equal two percentage points on each Adjustment Date thereafter~~Treasury Regulations Section 1.860G-2(a)(1). It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (~~xxxi~~xxviii) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass Through Certificates Series 2003 S4)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable 60 Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~96.95% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~3.05% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and ~~approximately 0.14% (by Principal Balance)~~ none of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.32% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.68% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~82.16% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~17.84% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~43.84% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxxi) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.or

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass Through Certificates Series 2002-Ar15)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage ~~Loan that is not a Cooperative~~ Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~98.08% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~1.59% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.34% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable)~~Note; (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~97.96% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~2.04% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (~~xxviii~~xxvi) Approximately ~~82.32~~85.21% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~14.79% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~92.51% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (~~xxx~~xxviii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxix) With respect to each Mortgage Loan, the Periodic Cap shall equal ~~five percentage points~~ 5% on the first Adjustment Date and shall equal ~~two percentage points~~ 2% on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass Through Certificates Series 2002-Ar3)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and 77 no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) ~~None~~ Except for approximately 3.2% (by Principal Balance) of the Group I Loans and approximately 2.6% (by Principal Balance) of the Group II Loans, none of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~97.67% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~1.52% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.81% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; and approximately 96.99% (by Principal Balance) of the Group II Loans will be secured by owner occupied ~~properties~~Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.56% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 1.45% (by Principal Balance) of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~98.07% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~1.92% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no ~~Mortgage~~ Group I Loan had a current Loan-to-Value Ratio greater than 95%; and approximately 99.46% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 0.54% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group II Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~72.30% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and approximately 87.15% (by Principal Balance) of the Group II Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~27.69% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and approximately 12.86% (by Principal Balance) of the Group II Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~83.76% and 79.82% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and Group II Loans, respectively, were originated under full documentation programs;; and (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass Thru Certificates Series 2002-Ms9)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~96.42% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~3.48% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.10% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.59% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.41% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~79.99% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~20.01% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~34.44% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass Through Certs Ser 2003-Ar10)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, ~~disclosure and~~ disclosure, recording ~~laws,~~ and predatory and abusive lending ~~laws applicable to the originating lender~~laws; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~97.52% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~2.18% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.30% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.56% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.44% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~94.99% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~5.01% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~82.67% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) No Mortgage Loan secured by Mortgaged Property located in the State of Georgia, that was originated on or after October 1, 2002, is a “home loan” as defined in the Georgia Fair Lending Act; and (xxxi) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass Through Certificates Series 2003-S2)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made ~~and~~ and, except as set forth on Schedule 1 hereto, (a) no Mortgage Loan ~~had been delinquent (i.e.,~~ was more than 30 days past ~~due)~~ due more than once in during the ~~preceding~~ 12 months preceding the Cut-Off Date and ~~any such delinquency lasted for~~ (b) no Mortgage Loan was more than ~~30 days~~60 days past due at any time during the 12 months preceding the Cut-Off Date; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) ~~Each Mortgage Loan with a~~ All of the Group I Loans either (i) had Loan-to-Value ~~Ratio~~ Ratios as of the Cut-Off Date less than or equal to 80% or (ii) had Loan-to-Value Ratios as of the Cut-Off Date in excess of 80% ~~was~~ and were covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect;; and approximately 99.20% (by Principal Balance) of the Group II Loans either (i) had Loan-to-Value Ratios as of the Cut-Off Date less than or equal to 80% or (ii) had Loan-to-Value Ratios as of the Cut-Off Date in excess of 80% and were covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect. (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) ~~None~~ Except for approximately 0.3% (by Principal Balance) of the Group II Loans, none of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~93.12% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~0.55% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and 6.33% (by Principal Balance) of the Group I Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; and approximately 91.85% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 3.37% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~4.78% (by Principal Balance) of the ~~Mortgage~~ Group II Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx ~~Mae~~ Xxx or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~97.41% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~2.60% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no ~~Mortgage~~ Group I Loan had a current Loan-to-Value Ratio greater than 95%; and approximately 90.88% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 8.87% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and approximately 0.25% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~65.79% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and approximately 47.41% (by Principal Balance) of the Group II Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~34.21% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and approximately 52.59% (by Principal Balance) of the Group II Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~72.70% and 75.60% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and Group II Loans, respectively, were originated under full documentation programs; (xxx~~) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi~~) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; (xxxi) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1.860G-2(a)(1); 67 (xxxii) No Mortgage Loan has a Closing Date Loan-to-Value Ratio greater than 100%; (xxxiii) Each Additional Collateral Loan is covered by a Surety Bond; and (~~xxxii~~xxxiv) ~~With respect to each Mortgage Loan,~~ Each Additional Collateral Loan is secured solely by the ~~Periodic Cap shall equal five percentage points on~~ related Mortgaged Property and by a securities account owned by the ~~first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter~~related Mortgagor or a guarantor. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties (in the case of a breach of the representation set forth in clause (xxxii) of this Section 2.08, as based on a determination of the applicable Closing Date Loan-to-Value Ratio using such evidence as is reasonably designed to approximate the value of the applicable Mortgaged Property as of the Closing Date) which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (~~xxxi~~xxx) or clause (xxxii) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects; provided, however, that in the case of a breach of the representation set forth in clause (xxxii) of this Section 2.08, any such substitution may be made only within two years after the Closing Date. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual MSC Mort Pass THR Certs Ser 2003-Ms9)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section ~~2.04~~ 2.01 herein, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage ~~Loan that is not a Cooperative~~ Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~96.02% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~3.68% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.30% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable)~~Note; (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~98.92% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.08% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (~~xxviii~~xxvi) Approximately ~~82.32~~85.70% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~14.30% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~67.42% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (~~xxx~~xxviii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxix) With respect to each Mortgage Loan, the Periodic Cap shall equal ~~five percentage points~~ 5% on the first Adjustment Date and shall equal ~~two percentage points~~ 2% on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section ~~2.08~~ 2.03 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the ~~Trustee~~ Trustee, the Certificate Insurer or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the ~~Trust~~ Certificateholders or the Certificate Insurer in the related Mortgage Loans, the Company, the Master Servicer, the ~~Trustee~~ Trustee, the Certificate Insurer or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the ~~Trust~~Trustee, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel ~~addressed to the Trust and the Trustee~~ reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section ~~2.07~~2.02. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section ~~2.07~~2.02. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass Thru Certificate Series 2001-Ar6)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~93.75% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~6.20% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.04% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.48% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.53% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~57.29% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~42.72% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~28.43% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio~~; and~~; (xxxii) ~~With respect to each~~ No Mortgage ~~Loan,~~ Loan is a High Cost Loan or Covered Loan (as such terms are defined in the ~~Periodic Cap shall equal five percentage points~~ Standard & Poor's LEVELS® Glossary in effect on the ~~first Adjustment Date~~ Closing Date, which is now Version 5.6 Revised, Appendix E, applicable portions of which are attached hereto as Exhibit C) and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected no Mortgage Loan originated on or ~~Mortgage Loans or any property acquired in respect thereof from the Trust~~after October 1, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase 2002 through March 6, 2003 is governed by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.Georgia Fair Lending Act; and

Appears in 1 contract

Samples: Pooling and Servicing Agreement (WaMu Mortgage Pass-Through Certificates, Series 2004-Ar9)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the PNC Mortgage Loans provided for in Section ~~2.04 herein~~2.01 herein and the conveyance of the Clipper Mortgage Loans provided for in the Clipper Loan Sale Agreement, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: : (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; ; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; ; (iii) Immediately upon the transfer and assignment contemplated ~~herein~~herein and in the Clipper Loan Sale Agreement, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each PNC Mortgage Loan and Clipper Mortgage Loan, respectively, free and clear of any encumbrance or lien (other than any lien under this Agreement); ; (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; ; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; ; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; ; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; ; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender;~~ ; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; ; (x) As of the Closing Date, each Mortgage Loan ~~that~~ which is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to Fannie Mae or Freddie Mac, and has been issued by, and ~~is the valid and binding~~ xx xxe xxlid xxx xxxding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was acceptable to Fannie Mae or Freddie Mac and qualified to do business ~~in the~~ xx xxe state ~~in which~~ xx xxxxh the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and ~~inures~~ will be in full force and effect and inure to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Certificateholders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; ; (xi) ~~Each Mortgage Loan~~ All of the Group I Loans, not less than approximately 79.0% (by 105 Principal Balance) of the Group II Loans, not less than approximately 77.4% (by Principal Balance) of the Group III Loans and not less than approximately 81.9% (by Principal Balance) of the Group IV Loans with ~~a Loan-~~Loan- to-Value ~~Ratio~~ Ratios as of the Cut-Off Date in excess of 80% ~~was~~ were covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; ; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; ; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; ; (xiv) Each Mortgage ~~(exclusive of any riders thereto)~~ was documented by appropriate ~~Xxxxxx Xxx~~Fannie Mae/~~Xxxxxxx~~ Freddie Mac mortgage instruments in effect ~~at the~~ xx xxx time ~~of origination~~xx xxxgination, or other instruments approved by the Company; ; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, ~~triplex, fourplex,~~ condominium project, townhouse, a planned unit development or a de minimis planned unit development; ; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; ; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met ~~the applicable Underwriting Standards~~Fannie Mae or Freddie Mac requirements, are located in ~~a condominium or planned~~ x xxxdominium xx xxxnned unit development projects which have received ~~Xxxxxx~~ Fannie Mae or ~~Xxxxxxx~~ Freddie Mac approval, or are approvable ~~by Xxxxxx~~ xx Xxxnie Mae ~~or Xxxxxxx~~ xx Xxxxdie Mac or have otherwise been ~~approved by~~ approxxx xx the ~~Company;~~ Comxxxx; (xviii) ~~None~~ One Group I Loan and one Group III Loan is a Buydown Loan and none of the ~~Mortgage~~ Group II or Group IV Loans are Buydown Loans; ; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~97.85% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~1.59% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.57% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; approximately 94.85% (by Principal Balance) of the Group II Loans will be secured by owner occupied ~~properties;~~ Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.02% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 4.13% (by Principal Balance) of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 80.43% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.29% (by Principal 106 Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 18.29% (by Principal Balance) of the Group III Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; approximately 71.85% (by Principal Balance) of the Group IV Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 3.76% (by Principal Balance) of the Group IV Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 24.38% (by Principal Balance) of the Group IV Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to ~~Xxxxxx~~ Fannie Mae or ~~Xxxxxxx~~ Freddie Mac; ; (xxi) The Mortgage ~~Loans have been underwritten~~ Loanx xxxx xxxn unxxxxxxxten substantially in accordance with the applicable Underwriting Standards; ; (xxii) All of the Mortgage Loans have due-on-sale clauses; by the terms of the Mortgage Notes, however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note;~~ law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; ; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); ; (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; ; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable);~~ Note; (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~91.52% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~8.47% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95~~% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95~~%; (xxviii) Approximately 82.32% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately 17.69% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately 34.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (PNC Mortgage Securities Corp Mort Pass Thro Cert Ser 1999-5)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off ~~Date~~ Date, unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) ~~Each~~ All of the Mortgage ~~Loan~~ Loans with a Loan-to-Value ~~Ratio~~ Ratios both as of the Cut-Off Date and as of its respective origination date in excess of 80% ~~was covered~~ were covered, as of the Cut-Off Date, by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement ~~or by a Selling and Servicing Contract~~ have been validly issued and remain in full force and effect, including such policies covering the ~~Company,~~ Company or the ~~Master Servicer or any~~ Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/~~Xxxxxxx~~ Freddie Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac approval, or are approvable by Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~93.09% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related ~~Mortgagors,~~ Mortgagors and approximately ~~5.04~~6.91% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the ~~Mortgagors and approximately 0.14% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties~~Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~96.71% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~2.53% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 9590% and no approximately 0.76% (by Principal Balance) of the Mortgage Loan had a current Loan-to-Value Ratio greater than 9590%; (~~xxviii~~xxvi) Approximately ~~82.32~~68.57% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~31.43% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~27.85% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (~~xxx~~xxviii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1);; and (~~xxxi~~xxix) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (xxx) No Mortgage Loan is a High Cost Loan or Covered Loan (as such terms are defined in the Standard & Poor's LEVELS® Glossary in effect on the Closing Date, which is now Version 5.6c Revised, Appendix E, applicable portions of which are attached hereto as Exhibit C) and no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act; (xxxi) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxxii) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor’s pro rata share of the Cooperative’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxxiii) No Mortgage Loan has a Closing Date Loan-to-Value Ratio greater than 100%; and (xxxiv) With respect to each Mortgage ~~Loan~~Loan that has a Prepayment Premium feature, ~~the Periodic Cap shall equal five percentage points on the first Adjustment Date~~ each such Prepayment Premium is enforceable in accordance with its terms, and ~~shall equal two percentage points on~~ each ~~Adjustment Date thereafter~~such Prepayment Premium is permitted pursuant to applicable federal, state and local law, subject to federal preemption where applicable. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the ~~Master~~ Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties (in the case of a breach of the representation set forth in clause (xxxiii) of this Section 2.08, as based on a determination of the applicable Closing Date Loan-to-Value Ratio using such evidence as is reasonably designed to approximate the value of the applicable Mortgaged Property as of the Closing Date) which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the ~~Master~~ Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (~~xxxi~~xxix) or clause (xxx) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (WaMu Mortgage Pass-Through Certificates, Series 2005-Ar11)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) ~~None~~ Except for one of the Group III Loans, none of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~97.94% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~2.06% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and ~~approximately 0.14% (by Principal Balance)~~ none of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All investor properties of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately 98.93% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.08% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately 82.32% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately 17.69% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately 34.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.related

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual MSC Mort Pass Through Cert Ser 2002-Ms1)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement ~~or by a Selling and Servicing Contract~~ have been validly issued and remain in full force and effect, including such policies covering the ~~Company,~~ Company or the ~~Master Servicer or any~~ Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/~~Xxxxxxx~~ Freddie Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac approval, or are approvable by Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~94.74% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related ~~Mortgagors,~~ Mortgagors and approximately ~~5.04~~5.26% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the ~~Mortgagors and approximately 0.14% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties~~Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.87% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.15% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 9590% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 9590%; (xxviii) Approximately ~~82.32~~52.25% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~47.76% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~25.01% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; (xxxii) No Mortgage Loan is a High Cost Loan or Covered Loan (as such terms are defined in the Standard & Poor's LEVELS® Glossary in effect on the Closing Date, which is now Version 5.6b Revised, Appendix E, applicable portions of which are attached hereto as Exhibit C) and no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act; and (~~xxxii~~xxxiii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the ~~Master~~ Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the ~~Master~~ Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) or (xxxii) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (WaMu Mortgage Pass-Through Certificates, Series 2005-Ar7)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development 57 projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~97.07% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~2.93% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and ~~approximately 0.14% (by Principal Balance)~~ none of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.45% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.55% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (~~xxviii~~xxvi) Approximately ~~82.32~~72.51% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~23.83% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property;; 58 (~~xxix~~xxvii) Not less than approximately ~~34.34~~36.40% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (~~xxx~~xxviii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxix) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points (except for one mortgage loan for which the cap on the first Adjustment Date is six percentage points) on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass Through Cert 2002-Ar10)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~97.06% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~2.94% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and ~~approximately 0.14% (by Principal Balance)~~ none of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.22% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.79% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~82.52% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~17.49% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~46.11% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxxi) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual Mort Sec Corp Wamu Mo Pa Th Cer Se 02 Ar18)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section ~~2.04~~ 2.01 herein, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan ~~that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage ~~Loan that is not a Cooperative~~ Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) ~~Each Mortgage Loan~~ Approximately 14.3%% (by Principal Balance) of the Group I Loans and approximately 9.4%% (by Principal Balance) of the Group II Loans with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~92.97% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are 57 the primary residences of the related Mortgagors, approximately 4.52% (by Principal Balance) of the Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 2.51% (by Principal Balance) of the Group I Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; and approximately 94.91% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~2.07% (by Principal Balance) of the ~~Mortgage~~ Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~3.03% (by Principal Balance) of the ~~Mortgage~~ Group II Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or by the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable)~~Note; (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~87.57% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~12.37% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and approximately 0.05% (by Principal Balance) of the Group I Loans had a current Loan-to-Value Ratio greater than 95%; and approximately 80.44% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 19.56% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no ~~Mortgage~~ Group II Loan had a current Loan-to-Value Ratio greater than 95%; (~~xxviii~~xxvi) Approximately ~~82.32~~67.19% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and approximately 63.92% (by Principal Balance) of the Group II Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~32.81% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and approximately 36.08% (by Principal Balance) of the Group II Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~28.74% and 33.71% (by Principal Balance) of the ~~Mortgage~~ Group I Loans and Group II Loans, respectively, were originated under full documentation programs;; and (~~xxx~~xxviii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass Through Certificates Series 2001-Ar3)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~96.76% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~3.13% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.11% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.44% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.41% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 9590% and no approximately 0.16% (by Principal Balance) of the Mortgage ~~Loan~~ Loans had a current Loan-to-Value Ratio greater than 9590%; (xxviii) Approximately ~~82.32~~75.54% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~24.46% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~18.70% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass-Through Certificates Series 2004 Ar-3)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~97.98% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~1.90% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.13% (by Principal Balance) of the ~~Mortgage~~ Group I Loans will be secured by Mortgaged Properties which were ~~non-~~investor properties of the related Mortgagors; approximately 98.05% (by Principal Balance) of the Group II Loans will be secured by owner occupied ~~properties~~Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 1.95% (by Principal Balance) of the Group II Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and none of the Group II Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; and approximately 99.24% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 0.76% (by Principal Balance) of the Group III Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and none of the Group III Loans will be secured by Mortgaged Properties which were investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding ~~adjustable~~ fixed-rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's ’s pro rata share of the Cooperative's ’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~98.27% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~1.73% (by Principal Balance) of the ~~Mortgage~~ Group I Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no ~~Mortgage~~ Group I Loan had a current Loan-to-Value Ratio greater than 95%; approximately 98.66% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.35% (by Principal Balance) of the Group II Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group II Loan had a current Loan-to-Value Ratio greater than 95%; and 100.00% (by Principal Balance) of the Group III Loans had a current Loan-to-Value Ratio less than or equal to 80%, no Group III Loan had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Group III Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately ~~82.32~~84.32% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, approximately 92.01% (by Principal Balance) of the Group II Loans and approximately 81.44% (by Principal Balance) of the Group III Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~15.68% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, approximately 7.99% (by Principal Balance) of the Group II Loans and approximately 18.56% (by Principal Balance) of the Group III Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately ~~34.34~~87.55%, 83.31% and 85.80% (by Principal Balance) of the ~~Mortgage~~ Group I Loans, Group II Loans and Group III Loans, respectively, were originated under full documentation programs; (xxx~~) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi~~) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxxi) ~~With respect to each~~ Each Mortgage ~~Loan,~~ Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the ~~Periodic Cap shall equal five percentage points on the first Adjustment Date~~ Code and ~~shall equal two percentage points on each Adjustment Date thereafter~~Treasury Regulations Section 1.860G-2(a)(1). It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (~~xxxi~~xxx) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Wamu Mortgage Pass Through Certs Series 2003-S5)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section 2.04 herein, the Company hereby represents and warrants to the Trust that as of the Cut-Off ~~Date~~ Date, unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section 2.08(xvi)) first lien on an unencumbered estate in fee simple or (if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease) leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the Trust shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws, and predatory and abusive lending laws applicable to the originating lender; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage Loan that is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the Trust upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of ~~the Cut-Off Date~~ its respective origination date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement ~~or by a Selling and Servicing Contract~~ have been validly issued and remain in full force and effect, including such policies covering the ~~Company,~~ Company or the ~~Master Servicer or any~~ Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/~~Xxxxxxx~~ Freddie Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' ’ rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac approval, or are approvable by Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~92.42% (by Principal Balance) of the ~~Mortgage~~ Group 1 Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~7.14% (by Principal Balance) of the ~~Mortgage~~ Group 1 Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors, approximately 0.44% (by Principal Balance) of the Group 1 Loans will be secured by Mortgaged Properties which were non-owner occupied properties, approximately 93.82% (by Principal Balance) of the Group 2 Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 6.11% (by Principal Balance) of the Group 2 Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately ~~0.14~~0.07% (by Principal Balance) of the ~~Mortgage~~ Group 2 Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx ~~Mae~~ Xxx or ~~Xxxxxxx~~ Freddie Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~92.23% (by Principal Balance) of the ~~Mortgage~~ Group 1 Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~7.27% (by Principal Balance) of the ~~Mortgage~~ Group 1 Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 9590%, approximately 0.50% ~~and no Mortgage~~ Group 1 Loan had a current Loan-to-Value Ratio greater than 9590%~~; (xxviii) Approximately 82.32~~, approximately 98.49% (by Principal Balance) of the ~~Mortgage~~ Group 2 Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.27% (by Principal Balance) of the Group 2 Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 90% and approximately 0.25% Group 2 Loan had a current Loan-to-Value Ratio greater than 90%; (xxvi) Approximately 66.21% (by Principal Balance) of the Group 1 Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings~~; and~~ , approximately ~~17.69~~33.79% (by Principal Balance) of the ~~Mortgage~~ Group 1 Loans were originated for the purpose of purchasing the Mortgaged Property, approximately 69.01% (by Principal Balance) of the Group 2 Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings and approximately 30.99% (by Principal Balance) of the Group 2 Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~31.99% and 24.21% (by Principal Balance) of the ~~Mortgage~~ Group 1 Loans and Group 2 Loans, respectively, were originated under full documentation programs; (~~xxx~~xxviii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury ~~Regulations~~ Regulations Section ~~1. 860G-2(a)(1~~1.860G-2(a)(1);; and (~~xxxi~~xxix) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "“high-cost" ” loan or a "“predatory" ” loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "“covered" ” loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxx) No Mortgage Loan is a High Cost Loan or Covered Loan (as such terms are defined in the Standard & Poor's LEVELS® Glossary in effect on the Closing Date, which is now Version 5.6b Revised, Appendix E, applicable portions of which are attached hereto as Exhibit C) and no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act; (xxxi) With respect to each ~~Mortgage~~ Cooperative Loan, the ~~Periodic Cap shall equal five percentage points on~~ Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxxii) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors’ rights generally and principles of equity) perfected first ~~Adjustment Date~~ lien and ~~shall equal two percentage points on each Adjustment Date thereafter.~~ security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor’s pro rata share of the Cooperative’s payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the ~~Master~~ Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the ~~Master~~ Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (~~xxxi~~xxix) or clause (xxx) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "“Purchase Price," ” or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "“start-up day," ” any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "“qualified replacement mortgage" ” within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (WaMu Mortgage Pass-Through Certificates, Series 2005-Ar8)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section ~~2.04~~ 2.01 herein, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; (ii) As of the Closing Date, each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; (iii) Immediately upon the transfer and assignment contemplated herein, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender~~; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; (x) As of the Closing Date, each Mortgage ~~Loan that is not a Cooperative~~ Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance which has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and inures to the benefit of the ~~Trust~~ Holders of the Certificates upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; (xi) Each Mortgage Loan with a Loan-to-Value Ratio as of the Cut-Off Date in excess of 80% was covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage ~~relating to a Mortgage Loan that is not a Cooperative Loan~~ is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately ~~94.82~~99.19% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately ~~5.04~~0.81% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and ~~approximately 0.14% (by Principal Balance)~~ none of the Mortgage Loans will be secured by Mortgaged Properties which were ~~non-owner occupied properties~~investor properties of the related Mortgagors; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by ~~law or the terms of the related Mortgage Note~~law; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section ~~2.08~~ 2.03 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the ~~Trust~~ Trustee will not be materially adversely affected by the absence of the original Mortgage ~~Note (or portion thereof, as applicable)~~Note; (~~xxvii~~xxv) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately ~~98.93~~99.89% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately ~~1.08~~0.11% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (~~xxviii~~xxvi) Approximately ~~82.32~~53.45% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately ~~17.69~~46.55% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (~~xxix~~xxvii) Not less than approximately ~~34.34~~15.27% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (~~xxx~~xxviii) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (~~xxxii~~xxix) With respect to each Mortgage Loan, the Periodic Cap shall equal ~~five percentage points~~ 5% on the first Adjustment Date and shall equal ~~two percentage points~~ 1% on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Washington Mutual Mort Sec Corp Pas THR Cert Ser 01 Ar1)

Representations and Warranties of the Company Concerning the Mortgage Loans. With respect to the conveyance of the Mortgage Loans provided for in Section ~~2.04~~ 2.01 herein, the Company hereby represents and warrants to the ~~Trust~~ Trustee that as of the Cut-Off Date unless otherwise indicated: (i) The information set forth in the Mortgage Loan Schedule was true and correct in all material respects at the date or dates respecting which such information is furnished; ; (ii) As of the Closing Date, each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is a valid and enforceable (subject to Section ~~2.08(xvi~~2.03(xvi)) first lien on an unencumbered estate in fee simple or ~~(if the related Mortgage Loan is secured by the interest of the Mortgagor as a lessee under a ground lease)~~ leasehold estate in the related Mortgaged Property subject only to (a) liens for current real property taxes and special assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal obtained in connection with the origination of the Mortgage Loan; (c) exceptions set forth in the title insurance policy relating to such Mortgage, such exceptions being acceptable to mortgage lending institutions generally; and (d) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage; ; (iii) ~~Immediately~~ As of the Closing Date, the Company had good title to, and was the sole owner of, each Mortgage Loan free and clear of any encumbrance or lien, and immediately upon the transfer and assignment ~~contemplated herein~~herein contemplated, the ~~Trust~~ Trustee shall have good title to, and will be the sole legal owner of, each Mortgage Loan, free and clear of any encumbrance or lien (other than any lien under this Agreement); ; (iv) As of the day prior to the Cut-Off Date, all payments due on each Mortgage Loan had been made and no Mortgage Loan had been delinquent (i.e., was more than 30 days past due) more than once in the preceding 12 months and any such delinquency lasted for no more than 30 days; ; (v) As of the Closing Date, there is no late assessment for delinquent taxes outstanding against any Mortgaged Property; ; (vi) As of the Closing Date, there is no offset, defense or counterclaim to any Mortgage Note, including the obligation of the Mortgagor to pay the unpaid principal or interest on such Mortgage Note except to the extent that the Buydown Agreement for a Buydown Loan forgives certain indebtedness of a Mortgagor; ; (vii) As of the Closing Date, each Mortgaged Property is free of damage and in good repair, ordinary wear and tear excepted; ; (viii) Each Mortgage Loan at the time it was made complied with all applicable ~~local,~~ state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws~~, and predatory and abusive lending laws applicable to the originating lender;~~ ; (ix) Each Mortgage Loan was originated by a savings association, savings bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or by a mortgagee approved by the FHA and will be serviced by an institution which meets the servicer eligibility requirements established by the Company; ; (x) As of the Closing Date, each Mortgage Loan ~~that~~ which is not a Cooperative Loan is covered by an ALTA form or CLTA form of mortgagee title insurance policy or other form of policy of insurance ~~which~~ which, as of the origination date of such Mortgage Loan, was acceptable to FNMA or FHLMC, and has been issued by, and is the valid and binding obligation of, a title insurer which, as of the origination date of such Mortgage Loan, was acceptable to FNMA or FHLMC and qualified to do business in the state in which the related Mortgaged Property is located. Such policy insures the originator of the Mortgage Loan, its successors and assigns as to the first priority lien of the Mortgage in the original principal amount of the Mortgage Loan subject to the exceptions set forth in such policy. Such policy is in full force and effect and ~~inures~~ will be in full force and effect and inure to the benefit of the ~~Trust~~ Holders of the REMIC I Regular Interests and the Class R-1 Certificateholders upon the consummation of the transactions contemplated by this Agreement and no claims have been made under such policy, and no prior holder of the related Mortgage, including the Company, has done, by act or omission, anything which would impair the coverage of such policy; ; (xi) ~~Each Mortgage Loan~~ Not less than approximately 97.8% (by Principal Balance) of the Group I Loans, not less than approximately 58.9% (by Principal Balance) of the Group II Loans, not less than approximately 80.7% (by Principal Balance) of the Group III Loans and not less than approximately 88.4% (by Principal Balance) of the Group IV Loans with a Loan-to-Value ~~Ratio~~ Ratios as of the Cut-Off Date in excess of 80% ~~was~~ were covered by a Primary Insurance Policy or an FHA insurance policy or a VA guaranty, and such policy or guaranty is valid and remains in full force and effect; (xii) As of the Closing Date, all policies of insurance required by this Agreement or by a Selling and Servicing Contract have been validly issued and remain in full force and effect, including such policies covering the Company, the Master Servicer or any Servicer; (xiii) As of the Closing Date, each insurer issuing a Primary Insurance Policy holds a rating acceptable to the Rating Agencies; (xiv) Each Mortgage (exclusive of any riders thereto) was documented by appropriate Xxxxxx Xxx/Xxxxxxx Mac mortgage instruments in effect at the time of origination, or other instruments approved by the Company; (xv) As of the Closing Date, the Mortgaged Property securing each Mortgage relating to a Mortgage Loan that is not a Cooperative Loan is improved with a one- to four-family dwelling unit, including units in a duplex, triplex, fourplex, condominium project, townhouse, a planned unit development or a de minimis planned unit development; (xvi) As of the Closing Date, each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity; (xvii) As of the date of origination, as to Mortgaged Properties which are units in condominiums or planned unit developments, all of such units met the applicable Underwriting Standards, are located in a condominium or planned unit development projects which have received Xxxxxx Mae or Xxxxxxx Mac approval, or are approvable by Xxxxxx Mae or Xxxxxxx Mac or have otherwise been approved by the Company; (xviii) None of the Mortgage Loans are Buydown Loans; (xix) Based solely on representations of the Mortgagors obtained at the origination of the related Mortgage Loans, approximately 94.82% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which are the primary residences of the related Mortgagors, approximately 5.04% (by Principal Balance) of the Mortgage Loans will be secured by owner occupied Mortgaged Properties which were second or vacation homes of the Mortgagors and approximately 0.14% (by Principal Balance) of the Mortgage Loans will be secured by Mortgaged Properties which were non-owner occupied properties; (xx) Prior to origination or refinancing, an appraisal of each Mortgaged Property was made by an appraiser on a form satisfactory to Xxxxxx Mae or Xxxxxxx Mac; (xxi) The Mortgage Loans have been underwritten substantially in accordance with the applicable Underwriting Standards; (xxii) All of the Mortgage Loans have due-on-sale clauses; however, the due on sale provisions may not be exercised at the time of a transfer if prohibited by law or the terms of the related Mortgage Note; (xxiii) The Company used no adverse selection procedures in selecting the Mortgage Loans from among the outstanding adjustable rate conventional mortgage loans purchased by it which were available for inclusion in the Mortgage Pool and as to which the representations and warranties in this Section 2.08 could be made; (xxiv) With respect to each Cooperative Loan, the Cooperative Stock that is pledged as security for the Cooperative Loan is held by a person as a tenant-stockholder (as defined in Section 216 of the Code) in a cooperative housing corporation (as defined in Section 216 of the Code); (xxv) Each Cooperative Loan is secured by a valid, subsisting and enforceable (except as such enforcement may be limited by laws affecting the enforcement of creditors' rights generally and principles of equity) perfected first lien and security interest in the related Cooperative Stock securing the related Mortgage Note, subject only to (a) liens of the Cooperative for unpaid assessments representing the Mortgagor's pro rata share of the Cooperative's payments for its blanket mortgage, current and future real property taxes, insurance premiums, maintenance fees and other assessments to which like collateral is commonly subject, and (b) other matters to which like collateral is commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Security Agreement; (xxvi) With respect to any Mortgage Loan as to which an affidavit has been delivered to the Trustee certifying that the original Mortgage Note is a Destroyed Mortgage Note, if such Mortgage Loan is subsequently in default, the enforcement of such Mortgage Loan or of the related Mortgage by or on behalf of the Trust will not be materially adversely affected by the absence of the original Mortgage Note (or portion thereof, as applicable); (xxvii) Based upon an appraisal of the Mortgaged Property securing each Mortgage Loan, approximately 98.93% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio less than or equal to 80%, approximately 1.08% (by Principal Balance) of the Mortgage Loans had a current Loan-to-Value Ratio greater than 80% but less than or equal to 95% and no Mortgage Loan had a current Loan-to-Value Ratio greater than 95%; (xxviii) Approximately 82.32% (by Principal Balance) of the Mortgage Loans were originated for the purpose of refinancing existing mortgage debt, including cash-out refinancings; and approximately 17.69% (by Principal Balance) of the Mortgage Loans were originated for the purpose of purchasing the Mortgaged Property; (xxix) Not less than approximately 34.34% (by Principal Balance) of the Mortgage Loans were originated under full documentation programs; (xxx) Each Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A) of the Code and Treasury Regulations Section 1. 860G-2(a)(1); (xxxi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or Section 226.32 of Regulation Z, is a "high-cost" loan or a "predatory" loan as defined under any state or local law or regulation applicable to the originator of such Mortgage Loan or which would result in liability to the purchaser or assignee of such Mortgage Loan under any predatory or abusive lending law, or, without 62 limiting the generality of the foregoing, is a "covered" loan under the laws of the states of California, Colorado or Ohio; and (xxxii) With respect to each Mortgage Loan, the Periodic Cap shall equal five percentage points on the first Adjustment Date and shall equal two percentage points on each Adjustment Date thereafter. It is understood and agreed that the representations and warranties set forth in this Section 2.08 shall survive delivery of the respective Mortgage Files to the Trustee or the Custodian, as the case may be, and shall continue throughout the term of this Agreement. Upon discovery by any of the Company, the Master Servicer, the Trustee or the Custodian of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans, the Company, the Master Servicer, the Trustee or the Custodian, as the case may be, discovering such breach shall give prompt written notice to the others. Any breach of the representation set forth in clause (xxxi) of this Section 2.08 shall be deemed to materially and adversely affect the value of the related Mortgage Loans or the interests of the Trust in the related Mortgage Loans. Within 90 days of its discovery or its receipt of notice of breach, the Company shall repurchase, subject to the limitations set forth in the definition of "Purchase Price," or substitute for the affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof from the Trust, unless it has cured such breach in all material respects. After the end of the three-month period beginning on the "start-up day," any such substitution shall be made only if the Company provides to the Trustee an Opinion of Counsel addressed to the Trust and the Trustee reasonably satisfactory to the Trustee that each Substitute Mortgage Loan will be a "qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the Code. Such substitution shall be made in the manner and within the time limits set forth in Section 2.07. Any such repurchase by the Company shall be accomplished in the manner and at the Purchase Price, if applicable, but shall not be subject to the time limits, set forth in Section 2.07. It is understood and agreed that the obligation of the Company to provide such substitution or to make such repurchase of any affected Mortgage Loan or Mortgage Loans or any property acquired in respect thereof as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest or the Trustee on behalf of the Holders of the REMIC I Regular Interests and the Class R-1 Residual Interest.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (PNC Mortgage Securities Corp)

Common use of Representations and Warranties of the Company Concerning the Mortgage Loans Clause in Contracts