REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR WITH RESPECT TO THE LOANS. The Depositor hereby represents and warrants to the Trustee as of the Closing Date with respect to the Loans: (i) that the information set forth in the Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein; (ii) that as of the date of the transfer of the Loans to the Trustee, the Depositor is the sole owner and holder of each Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same; (iii) that as of the date of initial issuance of the Certificates, no payment of principal of or interest on or in respect of any Loan is 30 days or more past due from the Due Date of such Loan; (iv) that to the best of the Depositor's knowledge, as of the date of the transfer of the Loans to the Trustee, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage; (v) that as of the date of the initial issuance of the Certificates, there is no proceeding pending, or to the best of the Depositor's knowledge, threatened for the total or partial condemnation of any of the Mortgaged Property and, to the best of the Depositor's knowledge, the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation; (vi) that each Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity disclosure laws and all applicable anti-predatory lending laws, and each Loan was not usurious at the time of origination; (vii) that to the best of the Depositor's knowledge, as of the date of the initial issuance of the Certificates, all insurance premiums previously due and owing with respect to the Mortgaged Property have been paid and all taxes and governmental assessments previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid; (viii) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor; (ix) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage; (x) that as of the initial issuance of the Certificates, neither the Depositor nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, canceled or subordinated such Mortgage in whole or part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction; (xi) that each Mortgaged Property consists of a fee simple estate or a condominium form of ownership in real property; (xii) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Depositor's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Depositor has not waived any default, breach, violation or event of acceleration; (xiii) that each Loan was originated on FNMA or FHLMC uniform instruments for the state in which the Mortgaged Property is located; (xiv) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Loan, 97.50% of the Loans measured by Principal Balance were to be secured by primary residences and no more than 2.50% of the Loans measured by Principal Balance were to be secured by second homes; (xv) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained; (xvi) that no Loan had a Loan-to-Value Ratio at origination in excess of 95%; (xvii) the Loans were not selected in manner to adversely affect the interests of the Certificateholders and the Depositor knows of no conditions which reasonably would cause it to expect any Loan to become delinquent or otherwise lose value; (xviii) each Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (A)(i) or (A)(ii) above; (xix) each Loan is a "qualified mortgage" within the meaning of Section 860G of the Code without regard to Section 1.860G-2(f) of the REMIC Provisions or any similar rule; (xx) each Loan that has a Loan-to-Value Ratio in excess of 80% is covered by a primary mortgage insurance policy; (xxi) that no Loan permits negative amortization or the deferral of accrued interest; and (xxii) No Loan is a "high-cost home loan" as defined in the Georgia Fair Lending Act, as amended, or in the New York Predatory Lending Law, codified as N.Y. Banking Law ss. 6-l, N.Y. Gen. Bus. Law ss. 771-a, and N.Y. Real Prop. Acts Law ss. 1302. It is understood and agreed that the representations and warranties set forth in this Section 2.3 shall survive delivery of the respective Mortgage Files to the Trustee, or to a Custodian, as the case may be. Upon discovery by the Depositor, Servicer, the Trustee or any Custodian of a breach of any of the foregoing representations and warranties (referred to herein as a "breach"), without regard to any limitation set forth in such representation or warranty concerning the knowledge of the Depositor as to the facts stated therein, which breach materially and adversely affects the interests of the Certificateholders in the related Loan, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency. Within 90 days of its discovery or its receipt or any Seller's receipt of notice of breach, the Depositor shall or shall cause such Seller to cure such breach in all material respects or shall repurchase the Loan or any property acquired in respect thereof from the Trustee at a repurchase price equal to 100% of the Principal Balance of such Loan plus accrued interest on such Principal Balance at the Mortgage Interest Rate to the next scheduled Due Date of such Loan or remove such Loan from the Trust Fund and substitute in its place a Substitute Loan or Loans with the characteristics set forth in Section 2.2 above for Substitute Loans; provided, however, that if such breach would cause the Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure, repurchase or substitution must occur within 90 days from the date such breach was discovered; provided, further, that no substitution (or cure which would constitute a loan modification for federal income tax purposes) may be effected any later than two years after the Closing Date; provided, further, that as a pre-condition to any substitution (or cure which would constitute a loan modification for federal income tax purposes) to be effected later than 90 days after the Closing Date (and within two years of the Closing Date), the Trustee shall receive from the Depositor an Opinion of Counsel to the effect that such substitution (or cure which would constitute a loan modification for federal income tax purposes) will not adversely affect the REMIC status of REMIC I or REMIC II or constitute a prohibited transaction under the REMIC Provisions of the Code and, if applicable, the REMIC provisions of the relevant State. If the breach of representation and warranty that gave rise to the obligation to repurchase or substitute a Loan pursuant to this Section 2.3 was the representation set forth in clause (vi) of this Section 2.3 as it relates to anti-predatory lending laws, then the Depositor shall cause the Seller to pay to the Trust Fund, concurrently with and in addition to the remedies provided in the preceding sentence, an amount equal to any liability, penalty or reasonable expense up to the time of such repurchase or substitution that was actually incurred and paid out of or on behalf of the Trust Fund, and that directly resulted from such breach. Except as expressly set forth herein, neither the Trustee nor the Servicer is under any obligation to discover any breach of the above mentioned representations and warranties. It is understood and agreed that the obligation of the Depositor or the Seller to repurchase or substitute any Loan or property as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to Certificateholders or the Trustee on behalf of Certificateholders, and such obligation shall survive as the obligation of the Depositor, the Seller or their respective successors.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Abn Amro Mortgage Corp Muilti Cl Mort Ps THR CRTS Ser 2003-8), Pooling and Servicing Agreement (Abn Amro Mortgage Corp Muilti Cl Mort Ps THR CRTS Ser 2003-8)

REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR WITH RESPECT TO THE LOANS. The Depositor hereby represents and warrants to the Trustee as of the Closing Date with respect to the Loans: (i) that the information set forth in the Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein; (ii) that as of the date of the transfer of the Loans to the Trustee, the Depositor is the sole owner and holder of each Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same; (iii) that as of the date of initial issuance of the Certificates, no payment of principal of or interest on or in respect of any Loan is 30 days or more past due from the Due Date of such Loan; (iv) that to the best of the Depositor's knowledge, as of the date of the transfer of the Loans to the Trustee, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage; (v) that as of the date of the initial issuance of the Certificates, there is no proceeding pending, or to the best of the Depositor's knowledge, threatened for the total or partial condemnation of any of the Mortgaged Property and, to the best of the Depositor's knowledge, the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation; (vi) that each Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity disclosure laws and all applicable anti-predatory lending laws, and each Loan was not usurious at the time of origination; (vii) that to the best of the Depositor's knowledge, as of the date of the initial issuance of the Certificates, all insurance premiums previously due and owing with respect to the Mortgaged Property have been paid and all taxes and governmental assessments previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid; (viii) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor; (ix) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage; (x) that as of the initial issuance of the Certificates, neither the Depositor nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, canceled or subordinated such Mortgage in whole or part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction; (xi) that each Mortgaged Property consists of a fee simple estate or a condominium form of ownership in real property; (xii) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Depositor's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Depositor has not waived any default, breach, violation or event of acceleration; (xiii) that each Loan was originated on FNMA or FHLMC uniform instruments for the state in which the Mortgaged Property is located; (xiv) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Loan, ~~97.50~~96.01% of the Loans measured by Principal Balance were to be secured by primary residences and no more than ~~2.50~~3.99% of the Loans measured by Principal Balance were to be secured by second homes; (xv) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained; (xvi) that no Loan had a Loan-to-Value Ratio at origination in excess of 95%; (xvii) the Loans were not selected in manner to adversely affect the interests of the Certificateholders and the Depositor knows of no conditions which reasonably would cause it to expect any Loan to become delinquent or otherwise lose value; (xviii) each Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (A)(i) or (A)(ii) above; (xix) each Loan is a "qualified mortgage" within the meaning of Section 860G of the Code without regard to Section 1.860G-2(f) of the REMIC Provisions or any similar rule; (xx) each Loan that has a Loan-to-Value Ratio in excess of 80% is covered by a primary mortgage insurance policy; (xxi) that no Loan permits negative amortization or the deferral of accrued interest; and (xxii) No Loan is a "high-cost home loan" as defined in the Georgia Fair Lending Act, as amended, or in the New York Predatory Lending Law, codified as N.Y. Banking Law ~~ss.~~ Section 6-l, N.Y. Gen. Bus. Law ~~ss.~~ Section 771-a, and N.Y. Real Prop. Acts Law ~~ss.~~ Section 1302. It is understood and agreed that the representations and warranties set forth in this Section 2.3 shall survive delivery of the respective Mortgage Files to the Trustee, or to a Custodian, as the case may be. Upon discovery by the Depositor, Servicer, the Trustee or any Custodian of a breach of any of the foregoing representations and warranties (referred to herein as a "breach"), without regard to any limitation set forth in such representation or warranty concerning the knowledge of the Depositor as to the facts stated therein, which breach materially and adversely affects the interests of the Certificateholders in the related Loan, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency. Within 90 days of its discovery or its receipt or any Seller's receipt of notice of breach, the Depositor shall or shall cause such Seller to cure such breach in all material respects or shall repurchase the Loan or any property acquired in respect thereof from the Trustee at a repurchase price equal to 100% of the Principal Balance of such Loan plus accrued interest on such Principal Balance at the Mortgage Interest Rate to the next scheduled Due Date of such Loan or remove such Loan from the Trust Fund and substitute in its place a Substitute Loan or Loans with the characteristics set forth in Section 2.2 above for Substitute Loans; provided, however, that if such breach would cause the Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure, repurchase or substitution must occur within 90 days from the date such breach was discovered; provided, further, that no substitution (or cure which would constitute a loan modification for federal income tax purposes) may be effected any later than two years after the Closing Date; provided, further, that as a pre-condition to any substitution (or cure which would constitute a loan modification for federal income tax purposes) to be effected later than 90 days after the Closing Date (and within two years of the Closing Date), the Trustee shall receive from the Depositor an Opinion of Counsel to the effect that such substitution (or cure which would constitute a loan modification for federal income tax purposes) will not adversely affect the REMIC status of REMIC I or REMIC II or constitute a prohibited transaction under the REMIC Provisions of the Code and, if applicable, the REMIC provisions of the relevant State. If the breach of representation and warranty that gave rise to the obligation to repurchase or substitute a Loan pursuant to this Section 2.3 was the representation set forth in clause (vi) of this Section 2.3 as it relates to anti-predatory lending laws, then the Depositor shall cause the Seller to pay to the Trust Fund, concurrently with and in addition to the remedies provided in the preceding sentence, an amount equal to any liability, penalty or reasonable expense up to the time of such repurchase or substitution that was actually incurred and paid out of or on behalf of the Trust Fund, and that directly resulted from such breach. Except as expressly set forth herein, neither the Trustee nor the Servicer is under any obligation to discover any breach of the above mentioned representations and warranties. It is understood and agreed that the obligation of the Depositor or the Seller to repurchase or substitute any Loan or property as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to Certificateholders or the Trustee on behalf of Certificateholders, and such obligation shall survive as the obligation of the Depositor, the Seller or their respective successors.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Abn Amro Mortgage Corp Mort Ps THR CRTS Ser 2003-7), Pooling and Servicing Agreement (Abn Amro Mortgage Corp Mort Ps THR CRTS Ser 2003-7)

REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR WITH RESPECT TO THE LOANS. The Depositor hereby represents and warrants to the Trustee as of the Closing Date with respect to the Loans:: 37 (i) that the information set forth in the Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein; (ii) that as of the date of the transfer of the Loans to the Trustee, the Depositor is the sole owner and holder of each Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same; (iii) that as of the date of initial issuance of the Certificates, no payment of principal of or interest on or in respect of any Loan is 30 days or more past due from the Due Date of such Loan; (iv) that to the best of the Depositor's knowledge, as of the date of the transfer of the Loans to the Trustee, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage; (v) that as of the date of the initial issuance of the Certificates, there is no proceeding pending, or to the best of the Depositor's knowledge, threatened for the total or partial condemnation of any of the Mortgaged Property and, to the best of the Depositor's knowledge, the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation; (vi) that each Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity disclosure laws and all applicable anti-predatory lending laws, and each Loan was not usurious at the time of origination; (vii) that to the best of the Depositor's knowledge, as of the date of the initial issuance of the Certificates, all insurance premiums previously due and owing with respect to the Mortgaged Property have been paid and all taxes and governmental assessments previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid; (viii) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor; (ix) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage; (x) that as of the initial issuance of the Certificates, neither the Depositor nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, canceled or subordinated such Mortgage in whole or part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction; (xi) that each Mortgaged Property consists of a fee simple estate or a condominium form of ownership in real property; (xii) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Depositor's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Depositor has not waived any default, breach, violation or event of acceleration; (xiii) that each Loan was originated on FNMA or FHLMC uniform instruments for the state in which the Mortgaged Property is located; (xiv) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Loan, ~~97.50~~no more than 94.97% of the Loans measured by Principal Balance were to be secured by primary residences and no more than ~~2.50~~5.03% of the Loans measured by Principal Balance were to be secured by second homes; (xv) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained; (xvi) that no Loan had a Loan-to-Value Ratio at origination in excess of 95%; (xvii) the Loans were not selected in manner to adversely affect the interests of the Certificateholders and the Depositor knows of no conditions which reasonably would cause it to expect any Loan to become delinquent or otherwise lose value; (xviii) each Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (A)(i) or (A)(ii) above; (xix) each Loan is a "qualified mortgage" within the meaning of Section 860G of the Code without regard to Section 1.860G-2(f) of the REMIC Provisions or any similar rule; (xx) each Loan that has a Loan-to-Value Ratio in excess of 80% is covered by a primary mortgage insurance policy; (xxi) that no Loan permits negative amortization or the deferral of accrued interest; and (xxii) No no Loan is a "high-cost home loan" as defined in the Georgia Fair Lending Act, as amended, or in the New York Predatory Lending Law, codified as N.Y. Banking Law ~~ss.~~ Section 6-l, N.Y. Gen. Bus. Law ~~ss.~~ Section 771-a, and N.Y. Real Prop. Acts Law ~~ss.~~ Section 1302; the Arkansas Home Loan Protection Act, as amended; or the Kentucky Revised Statutes Section 360.100, as amended. It is understood and agreed that the representations and warranties set forth in this Section 2.3 shall survive delivery of the respective Mortgage Files to the Trustee, or to a Custodian, as the case may be. Upon discovery by the Depositor, Servicer, the Trustee or any Custodian of a breach of any of the foregoing representations and warranties (referred to herein as a "breach"), without regard to any limitation set forth in such representation or warranty concerning the knowledge of the Depositor as to the facts stated therein, which breach materially and adversely affects the interests of the Certificateholders in the related Loan, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency. Within 90 days of its discovery or its receipt or any Seller's receipt of notice of breach, the Depositor shall or shall cause such Seller to cure such breach in all material respects or shall repurchase the Loan or any property acquired in respect thereof from the Trustee at a repurchase price equal to 100% of the Principal Balance of such Loan plus accrued interest on such Principal Balance at the Mortgage Interest Rate to the next scheduled Due Date of such Loan or remove such Loan from the Trust Fund and substitute in its place a Substitute Loan or Loans with the characteristics set forth in Section 2.2 above for Substitute Loans; provided, however, that if such breach would cause the Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure, repurchase or substitution must occur within 90 days from the date such breach was discovered; provided, further, that no substitution (or cure which would constitute a loan modification for federal income tax purposes) may be effected any later than two years after the Closing Date; provided, further, that as a pre-condition to any substitution (or cure which would constitute a loan modification for federal income tax purposes) to be effected later than 90 days after the Closing Date (and within two years of the Closing Date), the Trustee shall receive from the Depositor an Opinion of Counsel to the effect that such substitution (or cure which would constitute a loan modification for federal income tax purposes) will not adversely affect the REMIC status of ~~REMIC I or REMIC II~~ the Trust Fund or constitute a prohibited transaction under the REMIC Provisions of the Code and, if applicable, the REMIC provisions of the relevant State. If the breach of representation and warranty that gave rise to the obligation to repurchase or substitute a Loan pursuant to this Section 2.3 was the representation set forth in clause (vi) of this Section 2.3 as it relates to ~~anti-~~anti- predatory lending laws, then the Depositor shall cause the Seller to pay to the Trust Fund, concurrently with and in addition to the remedies provided in the preceding sentence, an amount equal to any liability, penalty or reasonable expense up to the time of such repurchase or substitution that was actually incurred and paid out of or on behalf of the Trust Fund, and that directly resulted from such breach. Except as expressly set forth herein, neither the Trustee nor the Servicer is under any obligation to discover any breach of the above mentioned representations and warranties. It is understood and agreed that the obligation of the Depositor or the Seller to repurchase or substitute any Loan or property as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to Certificateholders or the Trustee on behalf of Certificateholders, and such obligation shall survive as the obligation of the Depositor, the Seller or their respective successors.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Abn Amro Mortgage Corp Multi Cla Mor Pas THR Cer Se 2003-10)

REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR WITH RESPECT TO THE LOANS. The Depositor hereby represents and warrants to the Trustee as of the Closing ~~Date with respect to the Loans~~Date: (i) that the information set forth in the Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein; (ii) that as of the date of the transfer of the Loans to the Trustee, the Depositor is the sole owner and holder of each Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same; (iii) that as of the date of initial issuance of the Certificates, no payment of principal of or interest on or in respect of any Loan is 30 days or more past due from the Due Date of such Loan; (iv) that to the best of the Depositor's knowledge, as of the date of the transfer of the Loans to the Trustee, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage; (v) that as of the date of the initial issuance of the Certificates, there is no proceeding pending, or to the best of the Depositor's knowledge, threatened for the total or partial condemnation of any of the Mortgaged Property and, to the best of the Depositor's knowledge, the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation; (vi) that each Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure ~~laws and all applicable anti-predatory lending~~ laws, and each Loan was not usurious at the time of origination; (vii) that to the best of the Depositor's knowledge, as of the date of the initial issuance of the Certificates, all insurance premiums previously due and owing with respect to the Mortgaged Property have been paid and all taxes and governmental assessments previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid; (viii) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor; (ix) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage; (x) that as of the initial issuance of the Certificates, neither the Depositor nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, canceled or subordinated such Mortgage in whole or part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction; (xi) that each Mortgaged Property consists of a fee simple estate or a condominium form of ownership in real property; (xii) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Depositor's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Depositor has not waived any default, breach, violation or event of acceleration; (xiii) that each Loan was originated on FNMA or FHLMC uniform instruments for the state in which the Mortgaged Property is located; (xiv) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable ~~Loan~~Loan Component, ~~97.50~~96.0%, 93.3% and 91.5% of the ~~Loans~~ Loan Components in Track 1, Track 2 and Track 3, respectively, measured by Principal Balance were to be secured by primary residences and no more than ~~2.50~~4.0%, 6.7% and 8.5% of the ~~Loans~~ Loan Components in Track 1, Track 2 and Track 3, respectively, measured by Principal Balance were to be secured by second homes; (xv) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained; (xvi) that no Loan had a Loan-to-Value Ratio at origination in excess of 95%; (xvii) the Loans were not selected in manner to adversely affect the interests of the Certificateholders and the Depositor knows of no conditions which reasonably would cause it to expect any Loan to become delinquent or otherwise lose value; (xviii) each Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (A)(i) or (A)(ii) above; (xix) each Loan is a "qualified mortgage" within the meaning of Section 860G of the Code without regard to ~~Section~~ ss. 1.860G-2(f) of the REMIC Provisions or any similar rule; (xx) each Loan that has a Loan-to-Value Ratio in excess of 80% is covered by a primary mortgage insurance policy; (xxi) that no Loan permits negative amortization or the deferral of accrued interest~~; and~~; (xxii) No no Loan is a "high-cost home loan" as defined in the Georgia Fair Lending Act, as amended, or in the New York Predatory Lending Law, codified as N.Y. Banking Law ~~ss.~~ Section 6-l, N.Y. Gen. Bus. Law ~~ss.~~ Section 771-a, and N.Y. Real Prop. Acts Law ssSection 1302, the Arkansas Home Loan Protection Act, as amended, the Kentucky Revised Statutes Section 360.100, as amended, or the Florida Home Loan Protection Act ss.494.007 (the "Florida Act"); no Loan is a "covered loan" as defined in the District of Columbia Home Loan Protection Act ss.26-1151.01 (the "D.C. Act"); no Loan is a "high-rate, high-fee mortgage" as defined in Maine Consumer Credit Code -- Truth In Lending ss.8-103 (the "Maine Act"); and no Loan is a "home loan" as defined in Nevada Revised Statutes title 52, as amended by Assembly Xxxx No. ~~1302~~284, 72nd Session (Nevada 2003) (the "Nevada Act"); and (xxiii) no Loan is subject to the Home Ownership and Equity Protection Act of 1994, as amended. It is understood and agreed that the representations and warranties set forth in this Section 2.3 shall survive delivery of the respective Mortgage Files to the Trustee, or to a Custodian, as the case may be. Upon discovery by the Depositor, Servicer, the Trustee or any Custodian of a breach of any of the foregoing representations and warranties (referred to herein as a "breach"), without regard to any limitation set forth in such representation or warranty concerning the knowledge of the Depositor as to the facts stated therein, which breach materially and adversely affects the interests of the Certificateholders in the related Loan, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency. Within 90 days of its discovery or its receipt ~~or any Seller's receipt~~ of notice of breach, the Depositor shall cure or shall cause such ~~Seller~~ breach to ~~cure such breach~~ be cured in all material respects or shall repurchase the Loan or any property acquired in respect thereof from the Trustee at a repurchase price equal to 100% of the Principal Balance of such Loan plus accrued interest on such Principal Balance at the Mortgage Interest Rate to the next scheduled Due Date of such Loan or remove such Loan from the Trust Fund and substitute in its place a Substitute Loan or Loans with the characteristics set forth in Section 2.2 above for Substitute Loans; ~~provided~~PROVIDED, ~~however~~HOWEVER, that if such breach would cause the Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure, repurchase or substitution must occur within 90 days from the date such breach was discovered; ~~provided~~PROVIDED, ~~further~~FURTHER, that no substitution (or cure which would constitute a loan modification for federal income tax purposes) may be effected any later than two years after the Closing Date; ~~provided~~PROVIDED, ~~further~~FURTHER, that as a pre-condition to any substitution (or cure which would constitute a loan modification for federal income tax purposes) to be effected later than 90 days after the Closing Date (and within two years of the Closing Date), the Trustee shall receive from the Depositor an Opinion of Counsel to the effect that such substitution (or cure which would constitute a loan modification for federal income tax purposes) will not adversely affect the REMIC status of REMIC I I, REMIC II or REMIC II III or constitute a prohibited transaction under the REMIC Provisions of the Code and, if applicable, the REMIC provisions of the relevant State. If the breach of representation and warranty that gave rise to the obligation to repurchase or substitute a Loan pursuant to this Section 2.3 was the representation set forth in clause (vi) of this Section 2.3 as it relates to anti-predatory lending laws, then the Depositor shall cause the Seller to pay to the Trust Fund, concurrently with and in addition to the remedies provided in the preceding sentence, an amount equal to any liability, penalty or reasonable expense up to the time of such repurchase or substitution that was actually incurred and paid out of or on behalf of the Trust Fund, and that directly resulted from such breach. Except as expressly set forth herein, neither the Trustee nor the Servicer is under any obligation to discover any breach of the above mentioned representations and warranties. It is understood and agreed that the obligation of the Depositor ~~or the Seller~~ to repurchase or substitute any Loan or property as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to Certificateholders or the Trustee on behalf of Certificateholders, and such obligation shall survive as the obligation of the Depositor, ~~the Seller~~ or ~~their~~ its respective successors.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Multi-Class Mortgage Pass-Through Cert Series 2003-12)

REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR WITH RESPECT TO THE LOANS. The Depositor hereby represents and warrants to the Trustee as of the Closing Date with respect to the Loans: (i) that the information set forth in the Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein; (ii) that as of the date of the transfer of the Loans to the Trustee, the Depositor is the sole owner and holder of each Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same; (iii) that as of the date of initial issuance of the Certificates, no payment of principal of or interest on or in respect of any Loan is 30 days or more past due from the Due Date of such Loan; (iv) that to the best of the Depositor's knowledge, as of the date of the transfer of the Loans to the Trustee, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage; (v) that as of the date of the initial issuance of the Certificates, there is no proceeding pending, or to the best of the Depositor's knowledge, threatened for the total or partial condemnation of any of the Mortgaged Property and, to the best of the Depositor's ~~knowledge,~~ knowledge the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation; (vi) that each Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure ~~laws and all applicable anti-predatory lending~~ laws, and each Loan was not usurious at the time of origination; (vii) that to the best of the Depositor's knowledge, as of the date of the initial issuance of the Certificates, all insurance premiums previously due and owing with respect to the Mortgaged Property have been paid and all taxes and governmental assessments previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid; (viii) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor; (ix) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage; (x) that as of the initial issuance of the Certificates, neither the Depositor nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, canceled or subordinated such Mortgage in whole or part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction; (xi) that each Mortgaged Property consists of a fee simple estate or a condominium form of ownership in real property; (xii) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC; (xiii) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Depositor's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the ~~related~~ Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Depositor has not waived any default, breach, violation or event of acceleration; (~~xiii~~xiv) that each Loan was originated on FNMA or FHLMC uniform instruments for the state in which the Mortgaged Property is located; (~~xiv~~xv) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Loan, ~~97.50~~95.10% of the Group I Loans and 95.71% of the Group II Loans, measured by Principal Balance were to be secured by primary residences and no more than ~~2.50~~4.90% of the Group I Loans and 4.29% of the Group II Loans, measured by Principal Balance were to be secured by second homes; (xvxvi) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained; (~~xvi~~xvii) that no Loan had a Loan-to-Value Ratio at origination in excess of 95%; (~~xvii~~xviii) the Loans were not selected in manner to adversely affect the interests of the Certificateholders and the Depositor knows of no conditions which reasonably would cause it to expect any Loan to become delinquent or otherwise lose value; (~~xviii~~xix) each Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (A)(i) or (A)(ii) above; (~~xix~~xx) each Loan is a "qualified mortgage" within the meaning of Section 860G of the Code without regard to ~~Section~~ ss. 1.860G-2(f) of the REMIC Provisions or any similar rule; (xxxxi) each Loan that has a Loan-to-Value Ratio in excess of 80% is covered by a primary mortgage insurance policy;; and (~~xxi~~xxii) that no Loan permits negative amortization or the deferral of accrued interest; and (xxii) No Loan is a "high-cost home loan" as defined in the Georgia Fair Lending Act, as amended, or in the New York Predatory Lending Law, codified as N.Y. Banking Law ss. 6-l, N.Y. Gen. Bus. Law ss. 771-a, and N.Y. Real Prop. Acts Law ss. 1302. It is understood and agreed that the representations and warranties set forth in this Section 2.3 shall survive delivery of the respective Mortgage Files to the Trustee, or to a Custodian, as the case may be. Upon discovery by the Depositor, Servicer, the Trustee or any Custodian of a breach of any of the foregoing representations and warranties (referred to herein as a "breach"), without regard to any limitation set forth in such representation or warranty concerning the knowledge of the Depositor as to the facts stated therein, which breach materially and adversely affects the interests of the Certificateholders in the related Loan, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency. Within 90 days of its discovery or its receipt or ~~any~~ the Seller's receipt of notice of breach, the Depositor shall or shall cause ~~such~~ the Seller to cure such breach in all material respects or shall repurchase the Loan or any property acquired in respect thereof from the Trustee at a repurchase price equal to 100% of the Principal Balance of such Loan plus accrued interest on such Principal Balance at the Mortgage Interest Rate to the next scheduled Installment Due Date of such Loan or remove such Loan from the Trust Fund and substitute in its place a Substitute Loan or Loans with the characteristics set forth in Section 2.2 above for Substitute Loans; ~~provided~~PROVIDED, ~~however~~HOWEVER, that if such breach would cause the Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure, repurchase or substitution must occur within 90 days from the date such breach was discovered; ~~provided~~PROVIDED, ~~further~~FURTHER, that no substitution (or cure which would constitute a loan modification for federal income tax purposes) may be effected any later than two years after the Closing Date; ~~provided~~PROVIDED, ~~further~~FURTHER, that as a pre-condition to any substitution (or cure which would constitute a loan modification for federal income tax purposes) to be effected later than 90 days after the Closing Date (and within two years of the Closing Date), the Trustee shall receive from the Depositor an Opinion of Counsel to the effect that such substitution (or cure which would constitute a loan modification for federal income tax purposes) will not adversely affect the REMIC status of REMIC I I, REMIC II, REMIC III or REMIC II IV or constitute a prohibited transaction under the REMIC Provisions of the Code and, if applicable, the REMIC provisions of the relevant State. If the breach of representation and warranty that gave rise to the obligation to repurchase or substitute a Loan pursuant to this Section 2.3 was the representation set forth in clause (vi) of this Section 2.3 as it relates to anti-predatory lending laws, then the Depositor shall cause the Seller to pay to the Trust Fund, concurrently with and in addition to the remedies provided in the preceding sentence, an amount equal to any liability, penalty or reasonable expense up to the time of such repurchase or substitution that was actually incurred and paid out of or on behalf of the Trust Fund, and that directly resulted from such breach. Except as expressly set forth herein, neither the Trustee nor the Servicer is under any obligation to discover any breach of the above mentioned representations and warranties. It is understood and agreed that the obligation of the Depositor or the Seller to repurchase or substitute any Loan or property as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to Certificateholders or the Trustee on behalf of Certificateholders, and such obligation shall survive as the obligation of the Depositor, the Seller or their respective successors.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Abn Amro Mortgage Corp Series 2002-1a)

REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR WITH RESPECT TO THE LOANS. The Depositor hereby represents and warrants to the Trustee as of the Closing Date with respect to the Loans: (i) that the information set forth in the Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein; (ii) that as of the date of the transfer of the Loans to the Trustee, the Depositor is the sole owner and holder of each Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same; (iii) that as of the date of initial issuance of the Certificates, no payment of principal of or interest on or in respect of any Loan is 30 days or more past due from the Due Date of such Loan; (iv) that to the best of the Depositor's knowledge, as of the date of the transfer of the Loans to the Trustee, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage; (v) that as of the date of the initial issuance of the Certificates, there is no proceeding pending, or to the best of the Depositor's knowledge, threatened for the total or partial condemnation of any of the Mortgaged Property and, to the best of the Depositor's ~~knowledge,~~ knowledge the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation; (vi) that each Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure ~~laws and all applicable anti-predatory lending~~ laws, and each Loan was not usurious at the time of origination; (vii) that to the best of the Depositor's knowledge, as of the date of the initial issuance of the Certificates, all insurance premiums previously due and owing with respect to the Mortgaged Property have been paid and all taxes and governmental assessments previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid; (viii) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor; (ix) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage; (x) that as of the initial issuance of the Certificates, neither the Depositor nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, canceled or subordinated such Mortgage in whole or part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction; (xi) that each Mortgaged Property consists of a fee simple estate or a condominium form of ownership in real property; (xii) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Depositor's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Depositor has not waived any default, breach, violation or event of acceleration; (xiii) that each Loan was originated on FNMA or FHLMC uniform instruments for the state in which the Mortgaged Property is located; (xiv) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Loan, ~~97.50~~95.63% of the Group I Loans and 95.52% of the Group II Loans, measured by Principal ~~Balance~~ Balance, were to be secured by primary residences and no more than ~~2.50~~4.37% of the Group I Loans and 4.48% of the Group II Loans, measured by Principal ~~Balance~~ Balance, were to be secured by second homes; (xv) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained; (xvi) that no Loan had a Loan-to-Value Ratio at origination in excess of 95%; (xvii) the Loans were not selected in manner to adversely affect the interests of the Certificateholders and the Depositor knows of no conditions which reasonably would cause it to expect any Loan to become delinquent or otherwise lose value; (xviii) each Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (A)(i) or (A)(ii) above; (xix) each Loan is a "qualified mortgage" within the meaning of Section 860G of the Code without regard to ~~Section~~ ss. 1.860G-2(f) of the REMIC Provisions or any similar rule; (xx) each Loan that has a Loan-to-Value Ratio in excess of 80% is covered by a primary mortgage insurance policy; (xxi) that no Loan permits negative amortization or the deferral of accrued interest; , and (xxii) No Loan is a "high-cost home loan" as defined in the Georgia Fair Lending Act, as amended, or in the New York Predatory Lending Law, codified as N.Y. Banking Law ss. 6-l, N.Y. Gen. Bus. Law ss. 771-a, and N.Y. Real Prop. Acts Law ss. 1302. It is understood and agreed that the representations and warranties set forth in this Section 2.3 shall survive delivery of the respective Mortgage Files to the Trustee, or to a Custodian, as the case may be. Upon discovery by the Depositor, Servicer, the Trustee or any Custodian of a breach of any of the foregoing representations and warranties (referred to herein as a "breach"), without regard to any limitation set forth in such representation or warranty concerning the knowledge of the Depositor as to the facts stated therein, which breach materially and adversely affects the interests of the Certificateholders in the related Loan, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency. Within 90 days of its discovery or its receipt or any Seller's receipt of notice of breach, the Depositor shall or shall cause such Seller to cure such breach in all material respects or shall repurchase the Loan or any property acquired in respect thereof from the Trustee at a repurchase price equal to 100% of the Principal Balance of such Loan plus accrued interest on such Principal Balance at the Mortgage Interest Rate to the next scheduled Due Date of such Loan or remove such Loan from the Trust Fund and substitute in its place a Substitute Loan or Loans with the characteristics set forth in Section 2.2 above for Substitute Loans; provided, however, that if such breach would cause the Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure, repurchase or substitution must occur within 90 days from the date such breach was discovered; provided, further, that no substitution (or cure which would constitute a loan modification for federal income tax purposes) may be effected any later than two years after the Closing Date; provided, further, that as a pre-condition to any substitution (or cure which would constitute a loan modification for federal income tax purposes) to be effected later than 90 days after the Closing Date (and within two years of the Closing Date), the Trustee shall receive from the Depositor an Opinion of Counsel to the effect that such substitution (or cure which would constitute a loan modification for federal income tax purposes) will not adversely affect the REMIC status of REMIC I or REMIC II or constitute a prohibited transaction under the REMIC Provisions of the Code and, if applicable, the REMIC provisions of the relevant State. If the breach of representation and warranty that gave rise to the obligation to repurchase or substitute a Loan pursuant to this Section 2.3 was the representation set forth in clause (vi) of this Section 2.3 as it relates to anti-predatory lending laws, then the Depositor shall cause the Seller to pay to the Trust Fund, concurrently with and in addition to the remedies provided in the preceding sentence, an amount equal to any liability, penalty or reasonable expense up to the time of such repurchase or substitution that was actually incurred and paid out of or on behalf of the Trust Fund, and that directly resulted from such breach. Except as expressly set forth herein, neither the Trustee nor the Servicer is under any obligation to discover any breach of the above mentioned representations and warranties. It is understood and agreed that the obligation of the Depositor or the Seller to repurchase or substitute any Loan or property as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to Certificateholders or the Trustee on behalf of Certificateholders, and such obligation shall survive as the obligation of the Depositor, the Seller or their respective successors.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Abn Amro Mortgage Corp Multi Cl Mort Ps THR Certs Ser 2003-6)

REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR WITH RESPECT TO THE LOANS. The Depositor hereby represents and warrants to the Trustee as of the Closing Date with respect to the Loans: (i) that the information set forth in the Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein; (ii) that as of the date of the transfer of the Loans to the Trustee, the Depositor is the sole owner and holder of each Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same; (iii) that as of the date of initial issuance of the Certificates, no payment of principal of or interest on or in respect of any Loan is 30 days or more past due from the Due Date of such Loan; (iv) that to the best of the Depositor's knowledge, as of the date of the transfer of the Loans to the Trustee, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage; (v) that as of the date of the initial issuance of the Certificates, there is no proceeding pending, or to the best of the Depositor's knowledge, threatened for the total or partial condemnation of any of the Mortgaged Property and, to the best of the Depositor's ~~knowledge,~~ knowledge the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation; (vi) that each Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure ~~laws and all applicable anti-predatory lending~~ laws, and each Loan was not usurious at the time of origination; (vii) that to the best of the Depositor's knowledge, as of the date of the initial issuance of the Certificates, all insurance premiums previously due and owing with respect to the Mortgaged Property have been paid and all taxes and governmental assessments previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid; (viii) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor; (ix) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage; (x) that as of the initial issuance of the Certificates, neither the Depositor nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, canceled or subordinated such Mortgage in whole or part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction; (xi) that each Mortgaged Property consists of a fee simple estate or a condominium form of ownership in real property; (xii) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Depositor's knowledge, there is 50 no default, breach, violation or event of acceleration existing under the Mortgage or the ~~related~~ Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Depositor has not waived any default, breach, violation or event of acceleration; (xiii) that each Loan was originated on FNMA or FHLMC uniform instruments for the state in which the Mortgaged Property is located; (xiv) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Loan, ~~97.50~~94.31% of the Group I Loans and 94.25% of the Group II Loans, measured by Principal Balance were to be secured by primary residences and no more than ~~2.50~~5.69% of the Group I Loans and 5.75% of the Group II Loans, measured by Principal Balance were to be secured by second homes; (xv) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained; (xvi) that no Loan had a Loan-to-Value Ratio at origination in excess of 95%; (xvii) the Loans were not selected in manner to adversely affect the interests of the Certificateholders and the Depositor knows of no conditions which reasonably would cause it to expect any Loan to become delinquent or otherwise lose value; (xviii) each Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (A)(i) or (A)(ii) above; (xix) each Loan is a "qualified mortgage" within the meaning of Section 860G of the Code without regard to ~~Section~~ ss. 1.860G-2(f) of the REMIC Provisions or any similar rule; (xx) each Loan that has a Loan-to-Value Ratio in excess of 80% is covered by a primary mortgage insurance policy;; and (xxi) that no Loan permits negative amortization or the deferral of accrued interest; and (xxii) No Loan is a "high-cost home loan" as defined in the Georgia Fair Lending Act, as amended, or in the New York Predatory Lending Law, codified as N.Y. Banking Law ss. 6-l, N.Y. Gen. Bus. Law ss. 771-a, and N.Y. Real Prop. Acts Law ss. 1302. It is understood and agreed that the representations and warranties set forth in this Section 2.3 shall survive delivery of the respective Mortgage Files to the Trustee, or to a Custodian, as the case may be. Upon discovery by the Depositor, Servicer, the Trustee or any Custodian of a breach of any of the foregoing representations and warranties (referred to herein as a "breach"), without regard to any limitation set forth in such representation or warranty concerning the knowledge of the Depositor as to the facts stated therein, which breach materially and adversely affects the interests of the Certificateholders in the related Loan, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency. Within 90 days of its discovery or its receipt or any Seller's receipt of notice of breach, the Depositor shall or shall cause such Seller to cure such breach in all material respects or shall repurchase the Loan or any property acquired in respect thereof from the Trustee at a repurchase price equal to 100% of the Principal Balance of such Loan plus accrued interest on such Principal Balance at the Mortgage Interest Rate to the next scheduled Installment Due Date of such Loan or remove such Loan from the Trust Fund and substitute in its place a Substitute Loan or Loans with the characteristics set forth in Section 2.2 above for Substitute Loans; ~~provided~~PROVIDED, ~~however~~HOWEVER, that if such breach would cause the Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure, repurchase or substitution must occur within 90 days from the date such breach was discovered; ~~provided~~PROVIDED, ~~further~~FURTHER, that no substitution (or cure which would constitute a loan modification for federal income tax purposes) may be effected any later than two years after the Closing Date; ~~provided~~PROVIDED, ~~further~~FURTHER, that as a pre-condition to any substitution (or cure which would constitute a loan modification for federal income tax purposes) to be effected later than 90 days after the Closing Date (and within two years of the Closing Date), the Trustee shall receive from the Depositor an Opinion of Counsel to the effect that such substitution (or cure which would constitute a loan modification for federal income tax purposes) will not adversely affect the REMIC status of REMIC I or REMIC II or constitute a prohibited transaction under the REMIC Provisions of the Code and, if applicable, the REMIC provisions of the relevant State. If the breach of representation and warranty that gave rise to the obligation to repurchase or substitute a Loan pursuant to this Section 2.3 was the representation set forth in clause (vi) of this Section 2.3 as it relates to anti-predatory lending laws, then the Depositor shall cause the Seller to pay to the Trust Fund, concurrently with and in addition to the remedies provided in the preceding sentence, an amount equal to any liability, penalty or reasonable expense up to the time of such repurchase or substitution that was actually incurred and paid out of or on behalf of the Trust Fund, and that directly resulted from such breach. Except as expressly set forth herein, neither the Trustee nor the Servicer is under any obligation to discover any breach of the above mentioned representations and warranties. It is understood and agreed that the obligation of the Depositor or the Seller to repurchase or substitute any Loan or property as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to Certificateholders or the Trustee on behalf of Certificateholders, and such obligation shall survive as the obligation of the Depositor, the Seller or their respective successors.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Abn Amro Mortgage Corp Series 2002-5)

REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR WITH RESPECT TO THE LOANS. The Depositor hereby represents and warrants to the Trustee as of the Closing Date with respect to the Loans: (i) that the information set forth in the Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein; (ii) that as of the date of the transfer of the Loans to the Trustee, the Depositor is the sole owner and holder of each Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same; (iii) that as of the date of initial issuance of the Certificates, no payment of principal of or interest on or in respect of any Loan is 30 days or more past due from the Due Date of such Loan; (iv) that to the best of the Depositor's knowledge, as of the date of the transfer of the Loans to the Trustee, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage; (v) that as of the date of the initial issuance of the Certificates, there is no proceeding pending, or to the best of the Depositor's knowledge, threatened for the total or partial condemnation of any of the Mortgaged Property and, to the best of the Depositor's ~~knowledge,~~ knowledge the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation; (vi) that each Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure ~~laws and all applicable anti-predatory lending~~ laws, and each Loan was not usurious at the time of origination; (vii) that to the best of the Depositor's knowledge, as of the date of the initial issuance of the Certificates, all insurance premiums previously due and owing with respect to the Mortgaged Property have been paid and all taxes and governmental assessments previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid; (viii) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor; (ix) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage; (x) that as of the initial issuance of the Certificates, neither the Depositor nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, canceled or subordinated such Mortgage in whole or part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction; (xi) that each Mortgaged Property consists of a fee simple estate or a condominium form of ownership in real property; (xii) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Depositor's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the ~~related~~ Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Depositor has not waived any default, breach, violation or event of acceleration; (xiii) that each Loan was originated on FNMA or FHLMC uniform instruments for the state in which the Mortgaged Property is located; (xiv) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Loan, ~~97.50~~94.17% of the ~~Loans~~ Loans, measured by Principal Balance were to be secured by primary residences and no more than ~~2.50~~5.83% of the ~~Loans~~ Loans, measured by Principal Balance were to be secured by second homes; (xv) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained; (xvi) that no Loan had a Loan-to-Value Ratio at origination in excess of 95%; (xvii) the Loans were not selected in manner to adversely affect the interests of the Certificateholders and the Depositor knows of no conditions which reasonably would cause it to expect any Loan to become delinquent or otherwise lose value; (xviii) each Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (A)(i) or (A)(ii) above; (xix) each Loan is a "qualified mortgage" within the meaning of Section 860G of the Code without regard to ~~Section~~ ss. 1.860G-2(f) of the REMIC Provisions or any similar rule; (xx) each Loan that has a Loan-to-Value Ratio in excess of 80% is covered by a primary mortgage insurance policy;; and (xxi) that no Loan permits negative amortization or the deferral of accrued interest; and (xxii) No Loan is a "high-cost home loan" as defined in the Georgia Fair Lending Act, as amended, or in the New York Predatory Lending Law, codified as N.Y. Banking Law ss. 6-l, N.Y. Gen. Bus. Law ss. 771-a, and N.Y. Real Prop. Acts Law ss. 1302. It is understood and agreed that the representations and warranties set forth in this Section 2.3 shall survive delivery of the respective Mortgage Files to the Trustee, or to a Custodian, as the case may be. Upon discovery by the Depositor, Servicer, the Trustee or any Custodian of a breach of any of the foregoing representations and warranties (referred to herein as a "breach"), without regard to any limitation set forth in such representation or warranty concerning the knowledge of the Depositor as to the facts stated therein, which breach materially and adversely affects the interests of the Certificateholders in the related Loan, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency. Within 90 days of its discovery or its receipt or any Seller's receipt of notice of breach, the Depositor shall or shall cause such Seller to cure such breach in all material respects or shall repurchase the Loan or any property acquired in respect thereof from the Trustee at a repurchase price equal to 100% of the Principal Balance of such Loan plus accrued interest on such Principal Balance at the Mortgage Interest Rate to the next scheduled Due Date of such Loan or remove such Loan from the Trust Fund and substitute in its place a Substitute Loan or Loans with the characteristics set forth in Section 2.2 above for Substitute Loans; ~~provided~~PROVIDED, ~~however~~HOWEVER, that if such breach would cause the Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure, repurchase or substitution must occur within 90 days from the date such breach was discovered; ~~provided~~PROVIDED, ~~further~~FURTHER, that no substitution (or cure which would constitute a loan modification for federal income tax purposes) may be effected any later than two years after the Closing Date; ~~provided~~PROVIDED, ~~further~~FURTHER, that as a pre-condition to any substitution (or cure which would constitute a loan modification for federal income tax purposes) to be effected later than 90 days after the Closing Date (and within two years of the Closing Date), the Trustee shall receive from the Depositor an Opinion of Counsel to the effect that such substitution (or cure which would constitute a loan modification for federal income tax purposes) will not adversely affect the REMIC status of REMIC I or REMIC II or constitute a prohibited transaction under the REMIC Provisions of the Code and, if applicable, the REMIC provisions of the relevant State. If the breach of representation and warranty that gave rise to the obligation to repurchase or substitute a Loan pursuant to this Section 2.3 was the representation set forth in clause (vi) of this Section 2.3 as it relates to anti-predatory lending laws, then the Depositor shall cause the Seller to pay to the Trust Fund, concurrently with and in addition to the remedies provided in the preceding sentence, an amount equal to any liability, penalty or reasonable expense up to the time of such repurchase or substitution that was actually incurred and paid out of or on behalf of the Trust Fund, and that directly resulted from such breach. Except as expressly set forth herein, neither the Trustee nor the Servicer is under any obligation to discover any breach of the above mentioned representations and warranties. It is understood and agreed that the obligation of the Depositor or the Seller to repurchase or substitute any Loan or property as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to Certificateholders or the Trustee on behalf of Certificateholders, and such obligation shall survive as the obligation of the Depositor, the Seller or their respective successors.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Abn Amro Mortgage Corp Series 2002-3)

REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR WITH RESPECT TO THE LOANS. The Depositor hereby represents and warrants to the Trustee as of the Closing Date with respect to the Loans: (i) that the information set forth in the Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein; (ii) that as of the date of the transfer of the Loans to the Trustee, the Depositor is the sole owner and holder of each Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same; (iii) that as of the date of initial issuance of the Certificates, no payment of principal of or interest on or in respect of any Loan is 30 days or more past due from the Due Date of such Loan; (iv) that to the best of the Depositor's knowledge, as of the date of the transfer of the Loans to the Trustee, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage; (v) that as of the date of the initial issuance of the Certificates, there is no proceeding pending, or to the best of the Depositor's knowledge, threatened for the total or partial condemnation of any of the Mortgaged Property and, to the best of the Depositor's ~~knowledge,~~ knowledge the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation; (vi) that each Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure ~~laws and all applicable anti-predatory lending~~ laws, and each Loan was not usurious at the time of origination; (vii) that to the best of the Depositor's knowledge, as of the date of the initial issuance of the Certificates, all insurance premiums previously due and owing with respect to the Mortgaged Property have been paid and all taxes and governmental assessments previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid; (viii) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor; (ix) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage; (x) that as of the initial issuance of the Certificates, neither the Depositor nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, canceled or subordinated such Mortgage in whole or part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction; (xi) that each Mortgaged Property consists of a fee simple estate or a condominium form of ownership in real property; (xii) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Depositor's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Depositor has not waived any default, breach, violation or event of acceleration; (xiii) that each Loan was originated on FNMA or FHLMC uniform instruments for the state in which the Mortgaged Property is located; (xiv) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Loan, ~~97.50~~97.54% of the Group I Loans and 95.88% of the Group II Loans, measured by Principal ~~Balance~~ Balance, were to be secured by primary residences and no more than ~~2.50~~2.46% of the Group I Loans and 4.12% of the Group II Loans, measured by Principal ~~Balance~~ Balance, were to be secured by second homes; (xv) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained; (xvi) that no Loan had a Loan-to-Value Ratio at origination in excess of 95%; (xvii) the Loans were not selected in manner to adversely affect the interests of the Certificateholders and the Depositor knows of no conditions which reasonably would cause it to expect any Loan to become delinquent or otherwise lose value; (xviii) each Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (A)(i) or (A)(ii) above; (xix) each Loan is a "qualified mortgage" within the meaning of Section 860G of the Code without regard to ~~Section~~ ss. 1.860G-2(f) of the REMIC Provisions or any similar rule; (xx) each Loan that has a Loan-to-Value Ratio in excess of 80% is covered by a primary mortgage insurance policy; (xxi) that no Loan permits negative amortization or the deferral of accrued interest; , and (xxii) No Loan is a "high-cost home loan" as defined in the Georgia Fair Lending Act, as amended, or in the New York Predatory Lending Law, codified as N.Y. Banking Law ss. 6-l, N.Y. Gen. Bus. Law ss. 771-a, and N.Y. Real Prop. Acts Law ss. 1302. It is understood and agreed that the representations and warranties set forth in this Section 2.3 shall survive delivery of the respective Mortgage Files to the Trustee, or to a Custodian, as the case may be. Upon discovery by the Depositor, Servicer, the Trustee or any Custodian of a breach of any of the foregoing representations and warranties (referred to herein as a "breach"), without regard to any limitation set forth in such representation or warranty concerning the knowledge of the Depositor as to the facts stated therein, which breach materially and adversely affects the interests of the Certificateholders in the related Loan, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency. Within 90 days of its discovery or its receipt or any Seller's receipt of notice of breach, the Depositor shall or shall cause such Seller to cure such breach in all material respects or shall repurchase the Loan or any property acquired in respect thereof from the Trustee at a repurchase price equal to 100% of the Principal Balance of such Loan plus accrued interest on such Principal Balance at the Mortgage Interest Rate to the next scheduled Due Date of such Loan or remove such Loan from the Trust Fund and substitute in its place a Substitute Loan or Loans with the characteristics set forth in Section 2.2 above for Substitute Loans; provided, however, that if such breach would cause the Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure, repurchase or substitution must occur within 90 days from the date such breach was discovered; provided, further, that no substitution (or cure which would constitute a loan modification for federal income tax purposes) may be effected any later than two years after the Closing Date; provided, further, that as a pre-condition to any substitution (or cure which would constitute a loan modification for federal income tax purposes) to be effected later than 90 days after the Closing Date (and within two years of the Closing Date), the Trustee shall receive from the Depositor an Opinion of Counsel to the effect that such substitution (or cure which would constitute a loan modification for federal income tax purposes) will not adversely affect the REMIC status of REMIC I or REMIC II or constitute a prohibited transaction under the REMIC Provisions of the Code and, if applicable, the REMIC provisions of the relevant State. If the breach of representation and warranty that gave rise to the obligation to repurchase or substitute a Loan pursuant to this Section 2.3 was the representation set forth in clause (vi) of this Section 2.3 as it relates to anti-predatory lending laws, then the Depositor shall cause the Seller to pay to the Trust Fund, concurrently with and in addition to the remedies provided in the preceding sentence, an amount equal to any liability, penalty or reasonable expense up to the time of such repurchase or substitution that was actually incurred and paid out of or on behalf of the Trust Fund, and that directly resulted from such breach. Except as expressly set forth herein, neither the Trustee nor the Servicer is under any obligation to discover any breach of the above mentioned representations and warranties. It is understood and agreed that the obligation of the Depositor or the Seller to repurchase or substitute any Loan or property as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to Certificateholders or the Trustee on behalf of Certificateholders, and such obligation shall survive as the obligation of the Depositor, the Seller or their respective successors.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Abn Amro Mort Corp Multi Class Mort Pas THR Certs Ser 2003-5)

REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR WITH RESPECT TO THE LOANS. The Depositor hereby represents and warrants to the Trustee as of the Closing Date with respect to the Loans: (i) that the information set forth in the Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein; (ii) that as of the date of the transfer of the Loans to the Trustee, the Depositor is the sole owner and holder of each Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same; (iii) that as of the date of initial issuance of the Certificates, no payment of principal of or interest on or in respect of any Loan is 30 days or more past due from the Due Date of such Loan; (iv) that to the best of the Depositor's knowledge, as of the date of the transfer of the Loans to the Trustee, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage; (v) that as of the date of the initial issuance of the Certificates, there is no proceeding pending, or to the best of the Depositor's knowledge, threatened for the total or partial condemnation of any of the Mortgaged Property and, to the best of the Depositor's knowledge, the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation; (vi) that each Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure ~~laws and all applicable anti-predatory lending~~ laws, and each Loan was not usurious at the time of origination; (vii) that to the best of the Depositor's knowledge, as of the date of the initial issuance of the Certificates, all insurance premiums previously due and owing with respect to the Mortgaged Property have been paid and all taxes and governmental assessments previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid; (viii) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor; (ix) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage; (x) that as of the initial issuance of the Certificates, neither the Depositor nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, canceled or subordinated such Mortgage in whole or part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction; (xi) that each Mortgaged Property consists of a fee simple estate or a condominium form of ownership in real property; (xii) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Depositor's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Depositor has not waived any default, breach, violation or event of acceleration; (xiii) that each Loan was originated on FNMA or FHLMC uniform instruments for the state in which the Mortgaged Property is located; (xiv) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Loan, ~~97.50~~93.67% of the Loans measured by Principal Balance were to be secured by primary residences and no more than ~~2.50~~6.33% of the Loans measured by Principal Balance were to be secured by second homes; (xv) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained; (xvi) that no Loan had a Loan-to-Value Ratio at origination in excess of 95%; (xvii) the Loans were not selected in manner to adversely affect the interests of the Certificateholders and the Depositor knows of no conditions which reasonably would cause it to expect any Loan to become delinquent or otherwise lose value; (xviii) each Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (A)(i) or (A)(ii) above; (xix) each Loan is a "qualified mortgage" within the meaning ~~of Section 860~~ofss.860G of the Code without regard to ~~Section~~ (Section) 1.860G-2(f) of the REMIC Provisions or any similar rule; (xx) each Loan that has a Loan-to-Value Ratio in excess of 80% is covered by a primary mortgage insurance policy;; and (xxi) that no Loan permits negative amortization or the deferral of accrued interest; and (xxii) No Loan is a "high-cost home loan" as defined in the Georgia Fair Lending Act, as amended, or in the New York Predatory Lending Law, codified as N.Y. Banking Law ss. 6-l, N.Y. Gen. Bus. Law ss. 771-a, and N.Y. Real Prop. Acts Law ss. 1302. It is understood and agreed that the representations and warranties set forth in this Section 2.3 shall survive delivery of the respective Mortgage Files to the Trustee, or to a Custodian, as the case may be. Upon discovery by the Depositor, Servicer, the Trustee or any Custodian of a breach of any of the foregoing representations and warranties (referred to herein as a "breach"), without regard to any limitation set forth in such representation or warranty concerning the knowledge of the Depositor as to the facts stated therein, which breach materially and adversely affects the interests of the Certificateholders in the related Loan, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency. Within 90 days of its discovery or its receipt or any Seller's receipt of notice of breach, the Depositor shall or shall cause such Seller to cure such breach in all material respects or shall repurchase the Loan or any property acquired in respect thereof from the Trustee at a repurchase price equal to 100% of the Principal Balance of such Loan plus accrued interest on such Principal Balance at the Mortgage Interest Rate to the next scheduled Installment Due Date of such Loan or remove such Loan from the Trust Fund and substitute in its place a Substitute Loan or Loans with the characteristics set forth in Section 2.2 above for Substitute Loans; provided, however, that if such breach would cause the Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure, repurchase or substitution must occur within 90 days from the date such breach was discovered; provided, further, that no substitution (or cure which would constitute a loan modification for federal income tax purposes) may be effected any later than two years after the Closing Date; provided, further, that as a pre-condition to any substitution (or cure which would constitute a loan modification for federal income tax purposes) to be effected later than 90 days after the Closing Date (and within two years of the Closing Date), the Trustee shall receive from the Depositor an Opinion of Counsel to the effect that such substitution (or cure which would constitute a loan modification for federal income tax purposes) will not adversely affect the REMIC status of REMIC I or REMIC II or constitute a prohibited transaction under the REMIC Provisions of the Code and, if applicable, the REMIC provisions of the relevant State. If the breach of representation and warranty that gave rise to the obligation to repurchase or substitute a Loan pursuant to this Section 2.3 was the representation set forth in clause (vi) of this Section 2.3 as it relates to anti-predatory lending laws, then the Depositor shall cause the Seller to pay to the Trust Fund, concurrently with and in addition to the remedies provided in the preceding sentence, an amount equal to any liability, penalty or reasonable expense up to the time of such repurchase or substitution that was actually incurred and paid out of or on behalf of the Trust Fund, and that directly resulted from such breach. Except as expressly set forth herein, neither the Trustee nor the Servicer is under any obligation to discover any breach of the above mentioned representations and warranties. It is understood and agreed that the obligation of the Depositor or the Seller to repurchase or substitute any Loan or property as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to Certificateholders or the Trustee on behalf of Certificateholders, and such obligation shall survive as the obligation of the Depositor, the Seller or their respective successors.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Abn Amro Mortgage Corp)

REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR WITH RESPECT TO THE LOANS. The Depositor hereby represents and warrants to the Trustee as of the Closing Date with respect to the Loans: (i) that the information set forth in the Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein; (ii) that as of the date of the transfer of the Loans to the Trustee, the Depositor is the sole owner and holder of each Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same; (iii) that as of the date of initial issuance of the Certificates, no payment of 44 principal of or interest on or in respect of any Loan is 30 days or more past due from the Due Date of such Loan; (iv) that to the best of the Depositor's knowledge, as of the date of the transfer of the Loans to the Trustee, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage; (v) that as of the date of the initial issuance of the Certificates, there is no proceeding pending, or to the best of the Depositor's knowledge, threatened for the total or partial condemnation of any of the Mortgaged Property and, to the best of the Depositor's knowledge, the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation; (vi) that each Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure ~~laws and all applicable anti-predatory lending~~ laws, and each Loan was not usurious at the time of origination; (vii) that to the best of the Depositor's knowledge, as of the date of the initial issuance of the Certificates, all insurance premiums previously due and owing with respect to the Mortgaged Property have been paid and all taxes and governmental assessments previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid; (viii) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor; (ix) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in 45 connection with the origination of the related Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage; (x) that as of the initial issuance of the Certificates, neither the Depositor nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, canceled or subordinated such Mortgage in whole or part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction; (xi) that each Mortgaged Property consists of a fee simple estate or a condominium form of ownership in real property; (xii) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Depositor's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Depositor has not waived any default, breach, violation or event of acceleration; (xiii) that each Loan was originated on FNMA or FHLMC uniform instruments for the state in which the Mortgaged Property is located; (xiv) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Loan, ~~97.50~~96.48% of the Loans measured by Principal Balance were to be secured by primary residences and no more than ~~2.50~~3.52% of the Loans measured by Principal Balance were to be secured by second homes; (xv) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained; (xvi) that no Loan had a Loan-to-Value Ratio at origination in excess of 95%; (xvii) the Loans were not selected in manner to adversely affect the interests of the Certificateholders and the Depositor knows of no conditions which reasonably would cause it to expect any Loan to become delinquent or otherwise lose value; (xviii) each Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (A)(i) or (A)(ii) above; (xix) each Loan is a "qualified mortgage" within the meaning of Section 860G of the Code without regard to ~~Section~~ (Section) 1.860G-2(f) of the REMIC Provisions or any similar rule; (xx) each Loan that has a Loan-to-Value Ratio in excess of 80% is covered by a primary mortgage insurance policy;; and (xxi) that no Loan permits negative amortization or the deferral of accrued interest; and (xxii) No Loan is a "high-cost home loan" as defined in the Georgia Fair Lending Act, as amended, or in the New York Predatory Lending Law, codified as N.Y. Banking Law ss. 6-l, N.Y. Gen. Bus. Law ss. 771-a, and N.Y. Real Prop. Acts Law ss. 1302. It is understood and agreed that the representations and warranties set forth in this Section 2.3 shall survive delivery of the respective Mortgage Files to the Trustee, or to a Custodian, as the case may be. Upon discovery by the Depositor, Servicer, the Trustee or any Custodian of a breach of any of the foregoing representations and warranties (referred to herein as a "breach"), without regard to any limitation set forth in such representation or warranty concerning the knowledge of the Depositor as to the facts stated therein, which breach materially and adversely affects the interests of the Certificateholders in the related Loan, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency. Within 90 days of its discovery or its receipt or any Seller's receipt of notice of breach, the Depositor shall or shall cause such Seller to cure such breach in all material respects or shall repurchase the Loan or any property acquired in respect thereof from the Trustee at a repurchase price equal to 100% of the Principal Balance of such Loan plus accrued interest on such Principal Balance at the Mortgage Interest Rate to the next scheduled Installment Due Date of such Loan or remove such Loan from the Trust Fund and substitute in its place a Substitute Loan or Loans with the characteristics set forth in Section 2.2 above for Substitute Loans; provided, however, that if such breach would cause the Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure, repurchase or substitution must occur within 90 days from the date such breach was discovered; provided, further, that no substitution (or cure which would constitute a loan modification for federal income tax purposes) may be effected any later than two years after the Closing Date; provided, further, that as a pre-condition to any substitution (or cure which would constitute a loan modification for federal income tax purposes) to be effected later than 90 days after the Closing Date (and within two years of the Closing Date), the Trustee shall receive from the Depositor an Opinion of Counsel to the effect that such substitution (or cure which would constitute a loan modification for federal income tax purposes) will not adversely affect the REMIC status of REMIC I or REMIC II or constitute a prohibited transaction under the REMIC Provisions of the Code and, if applicable, the REMIC provisions of the relevant State. If the breach of representation and warranty that gave rise to the obligation to repurchase or substitute a Loan pursuant to this Section 2.3 was the representation set forth in clause (vi) of this Section 2.3 as it relates to anti-predatory lending laws, then the Depositor shall cause the Seller to pay to the Trust Fund, concurrently with and in addition to the remedies provided in the preceding sentence, an amount equal to any liability, penalty or reasonable expense up to the time of such repurchase or substitution that was actually incurred and paid out of or on behalf of the Trust Fund, and that directly resulted from such breach. Except as expressly set forth herein, neither the Trustee nor the Servicer is under any obligation to discover any breach of the above mentioned representations and warranties. It is understood and agreed that the obligation of the Depositor or the Seller to repurchase or substitute any Loan or property as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to Certificateholders or the Trustee on behalf of Certificateholders, and such obligation shall survive as the obligation of the Depositor, the Seller or their respective successors.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Abn Amro Mortgage Corp Series 2002-4)

REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR WITH RESPECT TO THE LOANS. The Depositor hereby represents and warrants to the Trustee as of the Closing Date with respect to the Loans: (i) that the information set forth in the Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein; (ii) that as of the date of the transfer of the Loans to the Trustee, the Depositor is the sole owner and holder of each Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same; (iii) that as of the date of initial issuance of the Certificates, no payment of principal of or interest on or in respect of any Loan is 30 days or more past due from the Due Date of such Loan; (iv) that to the best of the Depositor's knowledge, as of the date of the transfer of the Loans to the Trustee, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage; (v) that as of the date of the initial issuance of the Certificates, there is no proceeding pending, or to the best of the Depositor's knowledge, threatened for the total or partial condemnation of any of the Mortgaged Property and, to the best of the Depositor's ~~knowledge,~~ knowledge the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation; (vi) that each Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure ~~laws and all applicable anti-predatory lending~~ laws, and each Loan was not usurious at the time of origination; (vii) that to the best of the Depositor's knowledge, as of the date of the initial issuance of the Certificates, all insurance premiums previously due and owing with respect to the Mortgaged Property have been paid and all taxes and governmental assessments previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid; (viii) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor; (ix) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage; (x) that as of the initial issuance of the Certificates, neither the Depositor nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, canceled or subordinated such Mortgage in whole or part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction; (xi) that each Mortgaged Property consists of a fee simple estate or a condominium form of ownership in real property; (xii) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Depositor's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Depositor has not waived any default, breach, violation or event of acceleration; (xiii) that each Loan was originated on FNMA or FHLMC uniform instruments for the state in which the Mortgaged Property is located; (xiv) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Loan, ~~97.50~~96.58% of the Group I Loans and 94.26% of the Group II Loans, measured by Principal Balance were to be secured by primary residences and no more than ~~2.50~~3.42% of the Group I Loans and 5.74% of the Group II Loans, measured by Principal Balance were to be secured by second homes; (xv) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained; (xvi) that no Loan had a Loan-to-Value Ratio at origination in excess of 95%; (xvii) the Loans were not selected in manner to adversely affect the interests of the Certificateholders and the Depositor knows of no conditions which reasonably would cause it to expect any Loan to become delinquent or otherwise lose value; (xviii) each Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (A)(i) or (A)(ii) above; (xix) each Loan is a "qualified mortgage" within the meaning of Section 860G of the Code without regard to ~~Section~~ ss. 1.860G-2(f) of the REMIC Provisions or any similar rule; (xx) each Loan that has a Loan-to-Value Ratio in excess of 80% is covered by a primary mortgage insurance policy;; and (xxi) that no Loan permits negative amortization or the deferral of accrued interest; and (xxii) No Loan is a "high-cost home loan" as defined in the Georgia Fair Lending Act, as amended, or in the New York Predatory Lending Law, codified as N.Y. Banking Law ss. 6-l, N.Y. Gen. Bus. Law ss. 771-a, and N.Y. Real Prop. Acts Law ss. 1302. It is understood and agreed that the representations and warranties set forth in this Section 2.3 shall survive delivery of the respective Mortgage Files to the Trustee, or to a Custodian, as the case may be. Upon discovery by the Depositor, Servicer, the Trustee or any Custodian of a breach of any of the foregoing representations and warranties (referred to herein as a "breach"), without regard to any limitation set forth in such representation or warranty concerning the knowledge of the Depositor as to the facts stated therein, which breach materially and adversely affects the interests of the Certificateholders in the related Loan, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency. Within 90 days of its discovery or its receipt or any Seller's receipt of notice of breach, the Depositor shall or shall cause such Seller to cure such breach in all material respects or shall repurchase the Loan or any property acquired in respect thereof from the Trustee at a repurchase price equal to 100% of the Principal Balance of such Loan plus accrued interest on such Principal Balance at the Mortgage Interest Rate to the next scheduled Installment Due Date of such Loan or remove such Loan from the Trust Fund and substitute in its place a Substitute Loan or Loans with the characteristics set forth in Section 2.2 above for Substitute Loans; provided, however, that if such breach would cause the Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure, repurchase or substitution must occur within 90 days from the date such breach was discovered; provided, further, that no substitution (or cure which would constitute a loan modification for federal income tax purposes) may be effected any later than two years after the Closing Date; provided, further, that as a pre-condition to any substitution (or cure which would constitute a loan modification for federal income tax purposes) to be effected later than 90 days after the Closing Date (and within two years of the Closing Date), the Trustee shall receive from the Depositor an Opinion of Counsel to the effect that such substitution (or cure which would constitute a loan modification for federal income tax purposes) will not adversely affect the REMIC status of REMIC I I, REMIC II, REMIC III or REMIC II IV or constitute a prohibited transaction under the REMIC Provisions of the Code and, if applicable, the REMIC provisions of the relevant State. If the breach of representation and warranty that gave rise to the obligation to repurchase or substitute a Loan pursuant to this Section 2.3 was the representation set forth in clause (vi) of this Section 2.3 as it relates to anti-predatory lending laws, then the Depositor shall cause the Seller to pay to the Trust Fund, concurrently with and in addition to the remedies provided in the preceding sentence, an amount equal to any liability, penalty or reasonable expense up to the time of such repurchase or substitution that was actually incurred and paid out of or on behalf of the Trust Fund, and that directly resulted from such breach. Except as expressly set forth herein, neither the Trustee nor the Servicer is under any obligation to discover any breach of the above mentioned representations and warranties. It is understood and agreed that the obligation of the Depositor or the Seller to repurchase or substitute any Loan or property as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to Certificateholders or the Trustee on behalf of Certificateholders, and such obligation shall survive as the obligation of the Depositor, the Seller or their respective successors.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Abn Amro Mortgage Corp Multi Class Cer Ser 2002-8)

REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR WITH RESPECT TO THE LOANS. The Depositor hereby represents and warrants to the Trustee as of the Closing Date with respect to the Loans: (i) that the information set forth in the Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein; (ii) that as of the date of the transfer of the Loans to the Trustee, the Depositor is the sole owner and holder of each Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same; (iii) that as of the date of initial issuance of the Certificates, no payment of principal of or interest on or in respect of any Loan is 30 days or more past due from the Due Date of such Loan; (iv) that to the best of the Depositor's knowledge, as of the date of the transfer of the Loans to the Trustee, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage; (v) that as of the date of the initial issuance of the Certificates, there is no proceeding pending, or to the best of the Depositor's knowledge, threatened for the total or partial condemnation of any of the Mortgaged Property and, to the best of the Depositor's knowledge, the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation; (vi) that each Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure ~~laws and all applicable anti-predatory lending~~ laws, and each Loan was not usurious at the time of origination; (vii) that to the best of the Depositor's knowledge, as of the date of the initial issuance of the Certificates, all insurance premiums previously due and owing with respect to the Mortgaged Property have been paid and all taxes and governmental assessments previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid; (viii) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor; (ix) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage; (x) that as of the initial issuance of the Certificates, neither the Depositor nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, canceled or subordinated such Mortgage in whole or part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction; (xi) that each Mortgaged Property consists of a fee simple estate or a condominium form of ownership in real property; (xii) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Depositor's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Depositor has not waived any default, breach, violation or event of acceleration; (xiii) that each Loan was originated on FNMA or FHLMC uniform instruments for the state in which the Mortgaged Property is located; (xiv) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Loan, ~~97.50~~96.82% of the Loans measured by Principal Balance were to be secured by primary residences and no more than ~~2.50~~3.18% of the Loans measured by Principal Balance were to be secured by second homes; (xv) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained; (xvi) that no Loan had a Loan-to-Value Ratio at origination in excess of 95%; (xvii) the Loans were not selected in manner to adversely affect the interests of the Certificateholders and the Depositor knows of no conditions which reasonably would cause it to expect any Loan to become delinquent or otherwise lose value; (xviii) each Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (A)(i) or (A)(ii) above; (xix) each Loan is a "qualified mortgage" within the meaning of Section 860G of the Code without regard to Section 1.860G-2(f) of the REMIC Provisions or any similar rule; (xx) each Loan that has a Loan-to-Value Ratio in excess of 80% is covered by a primary mortgage insurance policy;; and (xxi) that no Loan permits negative amortization or the deferral of accrued interest; and (xxii) No Loan is a "high-cost home loan" as defined in the Georgia Fair Lending Act, as amended, or in the New York Predatory Lending Law, codified as N.Y. Banking Law ss. 6-l, N.Y. Gen. Bus. Law ss. 771-a, and N.Y. Real Prop. Acts Law ss. 1302. It is understood and agreed that the representations and warranties set forth in this Section 2.3 shall survive delivery of the respective Mortgage Files to the Trustee, or to a Custodian, as the case may be. Upon discovery by the Depositor, Servicer, the Trustee or any Custodian of a breach of any of the foregoing representations and warranties (referred to herein as a "breach"), without regard to any limitation set forth in such representation or warranty concerning the knowledge of the Depositor as to the facts stated therein, which breach materially and adversely affects the interests of the Certificateholders in the related Loan, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency. Within 90 days of its discovery or its receipt or any Seller's receipt of notice of breach, the Depositor shall or shall cause such Seller to cure such breach in all material respects or shall repurchase the Loan or any property acquired in respect thereof from the Trustee at a repurchase price equal to 100% of the Principal Balance of such Loan plus accrued interest on such Principal Balance at the Mortgage Interest Rate to the next scheduled Installment Due Date of such Loan or remove such Loan from the Trust Fund and substitute in its place a Substitute Loan or Loans with the characteristics set forth in Section 2.2 above for Substitute Loans; provided, however, that if such breach would cause the Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure, repurchase or substitution must occur within 90 days from the date such breach was discovered; provided, further, that no substitution (or cure which would constitute a loan modification for federal income tax purposes) may be effected any later than two years after the Closing Date; provided, further, that as a pre-condition to any substitution (or cure which would constitute a loan modification for federal income tax purposes) to be effected later than 90 days after the Closing Date (and within two years of the Closing Date), the Trustee shall receive from the Depositor an Opinion of Counsel to the effect that such substitution (or cure which would constitute a loan modification for federal income tax purposes) will not adversely affect the REMIC status of the REMIC ~~I or REMIC II~~ or constitute a prohibited transaction under the REMIC Provisions of the Code and, if applicable, the REMIC provisions of the relevant State. If the breach of representation and warranty that gave rise to the obligation to repurchase or substitute a Loan pursuant to this Section 2.3 was the representation set forth in clause (vi) of this Section 2.3 as it relates to anti-predatory lending laws, then the Depositor shall cause the Seller to pay to the Trust Fund, concurrently with and in addition to the remedies provided in the preceding sentence, an amount equal to any liability, penalty or reasonable expense up to the time of such repurchase or substitution that was actually incurred and paid out of or on behalf of the Trust Fund, and that directly resulted from such breach. Except as expressly set forth herein, neither the Trustee nor the Servicer is under any obligation to discover any breach of the above mentioned representations and warranties. It is understood and agreed that the obligation of the Depositor or the Seller to repurchase or substitute any Loan or property as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to Certificateholders or the Trustee on behalf of Certificateholders, and such obligation shall survive as the obligation of the Depositor, the Seller or their respective successors.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Abn Amro Mortgage Corp Mul Cl Mort Pass THR Cert Ser 2003-1)

REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR WITH RESPECT TO THE LOANS. The Depositor hereby represents and warrants to the Trustee as of the Closing Date with respect to the Loans: (i) that the information set forth in the Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein; (ii) that as of the date of the transfer of the Loans to the Trustee, the Depositor is the sole owner and holder of each Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same; (iii) that as of the date of initial issuance of the Certificates, no payment of principal of or interest on or in respect of any Loan is 30 days or more past due from the Due Date of such Loan; (iv) that to the best of the Depositor's knowledge, as of the date of the transfer of the Loans to the Trustee, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage; (v) that as of the date of the initial issuance of the Certificates, there is no proceeding pending, or to the best of the Depositor's knowledge, threatened for the total or partial condemnation of any of the Mortgaged Property and, to the best of the Depositor's ~~knowledge,~~ knowledge the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation; (vi) that each Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure ~~laws and all applicable anti-predatory lending~~ laws, and each Loan was not usurious at the time of origination; (vii) that to the best of the Depositor's knowledge, as of the date of the initial issuance of the Certificates, all insurance premiums previously due and owing with respect to the Mortgaged Property have been paid and all taxes and governmental assessments previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid; (viii) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor; (ix) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage; (x) that as of the initial issuance of the Certificates, neither the Depositor nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, canceled or subordinated such Mortgage in whole or part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction; (xi) that each Mortgaged Property consists of a fee simple estate or a condominium form of ownership in real property; (xii) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Depositor's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Depositor has not waived any default, breach, violation or event of acceleration; (xiii) that each Loan was originated on FNMA or FHLMC uniform instruments for the state in which the Mortgaged Property is located; (xiv) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Loan, ~~97.50~~94.60% of the Group I Loans and 83.59% of the Group II Loans, measured by Principal Balance were to be secured by primary residences and no more than ~~2.50~~5.40% of the Group I Loans and 16.41% of the Group II Loans, measured by Principal Balance were to be secured by second homes; (xv) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained; (xvi) that no Loan had a Loan-to-Value Ratio at origination in excess of 95%; (xvii) the Loans were not selected in manner to adversely affect the interests of the Certificateholders and the Depositor knows of no conditions which reasonably would cause it to expect any Loan to become delinquent or otherwise lose value; (xviii) each Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (A)(i) or (A)(ii) above; (xix) each Loan is a "qualified mortgage" within the meaning of Section 860G of the Code without regard to ~~Section~~ ss. 1.860G-2(f) of the REMIC Provisions or any similar rule; (xx) each Loan that has a Loan-to-Value Ratio in excess of 80% is covered by a primary mortgage insurance policy;; and (xxi) that no Loan permits negative amortization or the deferral of accrued interest; and (xxii) No Loan is a "high-cost home loan" as defined in the Georgia Fair Lending Act, as amended, or in the New York Predatory Lending Law, codified as N.Y. Banking Law ss. 6-l, N.Y. Gen. Bus. Law ss. 771-a, and N.Y. Real Prop. Acts Law ss. 1302. It is understood and agreed that the representations and warranties set forth in this Section 2.3 shall survive delivery of the respective Mortgage Files to the Trustee, or to a Custodian, as the case may be. Upon discovery by the Depositor, Servicer, the Trustee or any Custodian of a breach of any of the foregoing representations and warranties (referred to herein as a "breach"), without regard to any limitation set forth in such representation or warranty concerning the knowledge of the Depositor as to the facts stated therein, which breach materially and adversely affects the interests of the Certificateholders in the related Loan, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency. Within 90 days of its discovery or its receipt or any Seller's receipt of notice of breach, the Depositor shall or shall cause such Seller to cure such breach in all material respects or shall repurchase the Loan or any property acquired in respect thereof from the Trustee at a repurchase price equal to 100% of the Principal Balance of such Loan plus accrued interest on such Principal Balance at the Mortgage Interest Rate to the next scheduled Installment Due Date of such Loan or remove such Loan from the Trust Fund and substitute in its place a Substitute Loan or Loans with the characteristics set forth in Section 2.2 above for Substitute Loans; provided, however, that if such breach would cause the Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure, repurchase or substitution must occur within 90 days from the date such breach was discovered; provided, further, that no substitution (or cure which would constitute a loan modification for federal income tax purposes) may be effected any later than two years after the Closing Date; provided, further, that as a pre-condition to any substitution (or cure which would constitute a loan modification for federal income tax purposes) to be effected later than 90 days after the Closing Date (and within two years of the Closing Date), the Trustee shall receive from the Depositor an Opinion of Counsel to the effect that such substitution (or cure which would constitute a loan modification for federal income tax purposes) will not adversely affect the REMIC status of REMIC I I, REMIC II, REMIC III or REMIC II IV or constitute a prohibited transaction under the REMIC Provisions of the Code and, if applicable, the REMIC provisions of the relevant State. If the breach of representation and warranty that gave rise to the obligation to repurchase or substitute a Loan pursuant to this Section 2.3 was the representation set forth in clause (vi) of this Section 2.3 as it relates to anti-predatory lending laws, then the Depositor shall cause the Seller to pay to the Trust Fund, concurrently with and in addition to the remedies provided in the preceding sentence, an amount equal to any liability, penalty or reasonable expense up to the time of such repurchase or substitution that was actually incurred and paid out of or on behalf of the Trust Fund, and that directly resulted from such breach. Except as expressly set forth herein, neither the Trustee nor the Servicer is under any obligation to discover any breach of the above mentioned representations and warranties. It is understood and agreed that the obligation of the Depositor or the Seller to repurchase or substitute any Loan or property as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to Certificateholders or the Trustee on behalf of Certificateholders, and such obligation shall survive as the obligation of the Depositor, the Seller or their respective successors.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Abn Amro Mortgage Corp Series 2002-7)

REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR WITH RESPECT TO THE LOANS. The Depositor hereby represents and warrants to the Trustee as of the Closing Date with respect to the Loans:: 37 (i) that the information set forth in the Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein; (ii) that as of the date of the transfer of the Loans to the Trustee, the Depositor is the sole owner and holder of each Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same; (iii) that as of the date of initial issuance of the Certificates, no payment of principal of or interest on or in respect of any Loan is 30 days or more past due from the Due Date of such Loan; (iv) that to the best of the Depositor's knowledge, as of the date of the transfer of the Loans to the Trustee, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage; (v) that as of the date of the initial issuance of the Certificates, there is no proceeding pending, or to the best of the Depositor's knowledge, threatened for the total or partial condemnation of any of the Mortgaged Property and, to the best of the Depositor's knowledge, the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation; (vi) that each Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity disclosure laws and all applicable anti-predatory lending laws, and each Loan was not usurious at the time of origination; (vii) that to the best of the Depositor's knowledge, as of the date of the initial issuance of the Certificates, all insurance premiums previously due and owing with respect to the Mortgaged Property have been paid and all taxes and governmental assessments previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid; (viii) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor; (ix) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage; (x) that as of the initial issuance of the Certificates, neither the Depositor nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, canceled or subordinated such Mortgage in whole or part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction; (xi) that each Mortgaged Property consists of a fee simple estate or a condominium form of ownership in real property; (xii) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Depositor's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Depositor has not waived any default, breach, violation or event of acceleration; (xiii) that each Loan was originated on FNMA or FHLMC uniform instruments for the state in which the Mortgaged Property is located; (xiv) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Loan, ~~97.50~~94.47% of the Loans measured by Principal Balance were to be secured by primary residences and no more than ~~2.50~~5.53% of the Loans measured by Principal Balance were to be secured by second homes; (xv) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained; (xvi) that no Loan had a Loan-to-Value Ratio at origination in excess of 95%; (xvii) the Loans were not selected in manner to adversely affect the interests of the Certificateholders and the Depositor knows of no conditions which reasonably would cause it to expect any Loan to become delinquent or otherwise lose value; (xviii) each Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (A)(i) or (A)(ii) above; (xix) each Loan is a "qualified mortgage" within the meaning of Section 860G of the Code without regard to Section 1.860G-2(f) of the REMIC Provisions or any similar rule; (xx) each Loan that has a Loan-to-Value Ratio in excess of 80% is covered by a primary mortgage insurance policy; (xxi) that no Loan permits negative amortization or the deferral of accrued interest; and (xxii) No no Loan is a "high-cost home loan" as defined in the Georgia Fair Lending Act, as amended, or in the New York Predatory Lending Law, codified as N.Y. Banking Law ~~ss.~~ Section 6-l, N.Y. Gen. Bus. Law ~~ss.~~ Section 771-a, and N.Y. Real Prop. Acts Law ~~ss.~~ Section 1302; the Arkansas Home Loan Protection Act, as amended; or the Kentucky Revised Statutes Section 360.100, as amended. It is understood and agreed that the representations and warranties set forth in this Section 2.3 shall survive delivery of the respective Mortgage Files to the Trustee, or to a Custodian, as the case may be. Upon discovery by the Depositor, Servicer, the Trustee or any Custodian of a breach of any of the foregoing representations and warranties (referred to herein as a "breach"), without regard to any limitation set forth in such representation or warranty concerning the knowledge of the Depositor as to the facts stated therein, which breach materially and adversely affects the interests of the Certificateholders in the related Loan, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency. Within 90 days of its discovery or its receipt or any Seller's receipt of notice of breach, the Depositor shall or shall cause such Seller to cure such breach in all material respects or shall repurchase the Loan or any property acquired in respect thereof from the Trustee at a repurchase price equal to 100% of the Principal Balance of such Loan plus accrued interest on such Principal Balance at the Mortgage Interest Rate to the next scheduled Due Date of such Loan or remove such Loan from the Trust Fund and substitute in its place a Substitute Loan or Loans with the characteristics set forth in Section 2.2 above for Substitute Loans; provided, however, that if such breach would cause the Loan to be other than a "qualified mortgage" as defined in Section 860G(a)(3) of the Code, any such cure, repurchase or substitution must occur within 90 days from the date such breach was discovered; provided, further, that no substitution (or cure which would constitute a loan modification for federal income tax purposes) may be effected any later than two years after the Closing Date; provided, further, that as a pre-condition to any substitution (or cure which would constitute a loan modification for federal income tax purposes) to be effected later than 90 days after the Closing Date (and within two years of the Closing Date), the Trustee shall receive from the Depositor an Opinion of Counsel to the effect that such substitution (or cure which would constitute a loan modification for federal income tax purposes) will not adversely affect the REMIC status of REMIC I or REMIC II or constitute a prohibited transaction under the REMIC Provisions of the Code and, if applicable, the REMIC provisions of the relevant State. If the breach of representation and warranty that gave rise to the obligation to repurchase or substitute a Loan pursuant to this Section 2.3 was the representation set forth in clause (vi) of this Section 2.3 as it relates to anti-predatory lending laws, then the Depositor shall cause the Seller to pay to the Trust Fund, concurrently with and in addition to the remedies provided in the preceding sentence, an amount equal to any liability, penalty or reasonable expense up to the time of such repurchase or substitution that was actually incurred and paid out of or on behalf of the Trust Fund, and that directly resulted from such breach. Except as expressly set forth herein, neither the Trustee nor the Servicer is under any obligation to discover any breach of the above mentioned representations and warranties. It is understood and agreed that the obligation of the Depositor or the Seller to repurchase or substitute any Loan or property as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to Certificateholders or the Trustee on behalf of Certificateholders, and such obligation shall survive as the obligation of the Depositor, the Seller or their respective successors.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Multi-Class Mortgage Pass-Through Certificates Series 2003-9)

Common use of REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR WITH RESPECT TO THE LOANS Clause in Contracts