Representations and Warranties of the Seller Regarding the Mortgage Loans. The Seller represents and warrants to the Trustee, the Depositor, the Servicer and the Certificateholders as of the Closing Date and, with respect to any Subsequent Mortgage Loan, as of the Subsequent Transfer Date (in either case except as otherwise expressly stated) that, as to each Mortgage Loan conveyed to the Trust by it: (i) The information with respect to each Mortgage Loan set forth in the Mortgage Loan Schedule or Subsequent Mortgage Loan Schedule is true and correct as of the related Cut-off Date or related Subsequent Transfer Date; (ii) All of the original or certified documentation set forth in Section 2.01 (including all material documents related thereto), with respect to each Mortgage Loan has been or will be delivered to the Trustee on the Closing Date or as otherwise provided in Section 2.01 or Section 2.02, as applicable; (iii) Each related Mortgaged Property is improved by a one- to four-family residential dwelling owned by the related Mortgagor in fee simple that is permanently affixed to the land and constitutes real property under the laws of the state in which the Mortgaged Property is located but shall not include co-operatives or mobile homes; (iv) Each Mortgage Loan is a "qualified mortgage" as defined in Section 860G(a)(3) of the Code and no such Mortgage Loan has a loan-to-value ratio (calculated in accordance with the REMIC Provisions) in excess of 125%; none of the Mortgage Loans are either "consumer credit contracts" or "purchase money loans" as such terms are defined in 16 C.F.R. ss. 433; with respect to each Mortgage Loan that is a "mortgage" as such term is defined in 15 U.S.C. 1602(aa), no obligor has or will have a claim or defense under such Mortgage Loan; (v) As of the Cut-off Date, no Initial Mortgage Loan has a Loan-to-Value Ratio in excess of 100%; and Mortgage Loans representing not more than
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Aames Capital Corp Aames Mortgage Trust 2002-1), Pooling and Servicing Agreement (Aames Capital Corp Aames Mortgage Trust 2002-1)
Representations and Warranties of the Seller Regarding the Mortgage Loans. (a) The Seller represents and warrants to the TrusteeTrust, [the Depositor, Certificate Insurer] and the Servicer and Trustee on behalf of the Certificateholders as of the Closing Date and, with respect to any Subsequent Mortgage Loan, follows as of the Subsequent Transfer Date (in either case except as otherwise expressly stated) that, as to each Mortgage Loan conveyed to the Trust by itDate:
(i) The All information with respect to each Mortgage Loan set forth as to the Mortgage Loans in the Mortgage Loan Schedule or Subsequent Mortgage Loan Schedule attached hereto as Exhibit C, is complete, true and correct as in all material respects; the Mortgage File delivered by the Seller to the Purchaser or its designee includes all of the related Cut-off Date or related Subsequent Transfer DateSeller's records and documents with respect to the Mortgage Loans; and at the time of origination the Mortgage Loans conformed to the Underwriting Guidelines as set forth in the Prospectus Supplement;
(ii) All payments required under the terms of the original or certified documentation set forth in Section 2.01 (including all material documents related thereto)Mortgage Notes to have been made up to 30 days prior to the Closing Date have been made, other than with respect to each [ ]% of the Mortgage Loans (by Cut-off Date Principal Balance) which are between [ ] and [ ] days past due. No Mortgage Loan has been or will be delivered to the Trustee on the Closing Date or as otherwise provided in Section 2.01 or Section 2.02, as applicableis more than 59 days past due;
(iii) Each related Mortgaged Property No Mortgage Note or Mortgage has been assigned or pledged, and the Seller has good and marketable title thereto and is improved by a one- the sole owner thereof and has the full right to four-family residential dwelling owned by transfer and sell the related Mortgagor in fee simple that is permanently affixed Mortgage Loans to the land Purchaser free and constitutes real property under clear of any encumbrance, equity, lien, pledge, charge, claim or security interest. Immediately upon the laws transfer and assignment herein contemplated, the Seller shall have transferred all of its right, title and interest in and to each Mortgage Loan to the state in which Purchaser (or its assignee) and the Mortgaged Property is located but shall not include co-operatives Purchaser (or mobile homesits assignee) will hold good, marketable and indefeasible title, to and be the sole owner of each Mortgage Loan subject to no Liens;
(iv) Each All parties to the Mortgage Loan is a "qualified mortgage" as defined in Section 860G(a)(3) of Notes and the Code Mortgages had legal capacity to enter into the Mortgage Notes and no the Mortgages and to execute and deliver such Mortgage Loan has a loan-to-value ratio (calculated in accordance with the REMIC Provisions) in excess of 125%Note and Mortgage; none of the Mortgage Loans are either "consumer credit contracts" or "purchase money loans" as such terms are defined in 16 C.F.R. ss. 433; with respect to each Mortgage Loan that is a "mortgage" as such term is defined in 15 U.S.C. 1602(aa), no obligor has or will Notes and the Mortgages have a claim or defense under such Mortgage Loan;
(v) As of the Cut-off Date, no Initial Mortgage Loan has a Loan-to-Value Ratio in excess of 100%; and Mortgage Loans representing not more thanbeen duly
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Fleet Home Equity Loan Corp)
Representations and Warranties of the Seller Regarding the Mortgage Loans. (a) The Seller represents and warrants to the TrusteeServicer, the Depositor, the Servicer Depositor and the Trustee on behalf of the Certificateholders as follows as of the Closing Date and, with respect to any Subsequent Mortgage Loan, as of the Subsequent Transfer Date (in either case except as otherwise expressly stated) that, as to each Mortgage Loan conveyed to the Trust by itDate:
(i) 1. The information with respect to each Mortgage Loan set forth in on the Mortgage Loan Schedule or Subsequent Mortgage Loan Schedule is complete, true and correct as of the related Cut-off Date or related Subsequent Transfer Datedates as of which the information therein is given;
2. The Mortgage Notes and the Mortgages have not been assigned or pledged by the Seller to any Person other than warehouse lenders, and immediately prior to the transactions herein contemplated, the Seller had good and marketable title thereto, and was the sole owner and holder of the Mortgage Loans free and clear of any and all liens, claims, encumbrances, participation interests, equities, pledges, charges or security interests of any nature (collectively, a "Lien"), other than any such Lien released simultaneously with the sale contemplated herein, and had full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same pursuant to this Agreement, and immediately upon the transfer and assignment of each Mortgage Loan as contemplated by this Agreement, the Trust will be the sole beneficial owner of, each Mortgage Loan free and clear of any lien, claim, participation interest, mortgage, security interest, pledge, charge or other encumbrance or other interest of any nature;
3. With respect to any Mortgage Loan that is not a Cooperative Loan, each Mortgage is a valid and existing lien on the property therein described, and each Mortgaged Property is free and clear of all encumbrances and liens having priority over the lien of the Mortgage, except (i) liens for real estate taxes and special assessments not yet due and payable, (ii) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal made in connection with the origination of the related Mortgage Loan, (iii) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by such Mortgage, (iv) in the case of a Mortgaged Property that is a condominium or an individual unit in a planned unit development, liens for common charges permitted by statute and (v) in the case of a Mortgage Loan secured by a second lien on the related Mortgaged Property, the related First Lien. Any security agreement, chattel mortgage or equivalent document related to the Mortgage and delivered to the Trustee or the Custodian on behalf of the Trustee establishes in the Seller a valid and subsisting lien on the property described therein, and the Seller has full right to sell and assign the same to the Trust;
4. The terms of each Mortgage Note and Mortgage have not been impaired, altered or modified in any respect, except by a written instrument which has been recorded, if necessary to protect the interests of the Trust, and which has been delivered to the Trustee or the Custodian on behalf of the Trustee. The substance of any such alteration or modification is reflected on the Mortgage Loan Schedule;
5. No instrument of release or waiver has been executed in connection with any Mortgage Loan, and no Mortgagor has been released, in whole or in part, except in connection with an assumption agreement which has been approved by the primary mortgage guaranty insurer, if any, and which has been delivered to the Trustee or the Custodian on behalf of the Trustee;
6. Except with respect to delinquencies described in clause (12) hereof, no Mortgagor is in default in complying with the terms of its Mortgage Note or Mortgage, and the Seller has not waived any default, breach, violation or event of acceleration except that the Seller may have accepted late payments, and all taxes, governmental assessments, insurance premiums or water, sewer and municipal charges which previously became due and owing have been paid, or an escrow of funds has been established in an amount sufficient to pay for every such item which remains unpaid and which has been assessed but is not yet due and payable. The Seller has not advanced funds or induced, solicited or knowingly received any advance of funds by a party other than the Mortgagor, directly or indirectly, for the payment of any amount required by the Mortgage, except for interest accruing from the date of the Mortgage Note or date of disbursement of the Mortgage proceeds, whichever is more recent, to the day which precedes by one (1) month the Due Date of the first installment of principal and interest;
7. There is no proceeding pending or threatened for the total or partial condemnation of any Mortgaged Property, nor is such a proceeding currently occurring, and such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or otherwise, so as to affect adversely the value of the Mortgaged Property as security for the Mortgage Loan or the use for which the premises were intended;
8. There are no mechanics' or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under law could give rise to such lien) affecting any Mortgaged Property which are, or may be, liens prior or equal to, or coordinate with, the lien of the Mortgage except those that are stated in the title insurance policy and for which related losses are affirmatively insured against by such policy;
9. All of the original improvements that were included for the purpose of determining the Appraised Value of each Mortgaged Property lie wholly within the boundaries and building restriction lines of such property, and no improvements on adjoining properties encroach upon the Mortgaged Property except those that are stated in the title insurance policy and for which related losses are affirmatively insured against by such policy;
10. No improvement located on or certified documentation set forth being part of any Mortgaged Property is in Section 2.01 (including violation of any applicable zoning law or regulation. All inspections, licenses and certificates required to be made or issued with respect to all material documents related thereto)occupied portions of the Mortgaged Property and, with respect to each Mortgage Loan has the use and occupancy of the same, including, but not limited to, certificates of occupancy and fire underwriting certificates, have been made or will be delivered to obtained from the Trustee on appropriate authorities and the Closing Date or as otherwise provided in Section 2.01 or Section 2.02, as applicable;
(iii) Each related Mortgaged Property is improved by a one- to four-family residential dwelling owned by lawfully occupied under applicable law;
11. All parties that have had any interest in any Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the related Mortgagor period in fee simple that is permanently affixed to which they held and disposed of such interest, were)
(1) in compliance with any and all licensing requirements of the land United States and constitutes real property under of the laws of the state in which wherein the Mortgaged Property is located but shall that are applicable to such parties and (2)(A) organized under the laws of such state or (B) qualified to do business in such state or exempt from such qualification in a manner so as not include co-operatives or mobile homes;
(iv) Each Mortgage Loan is a "qualified mortgage" as defined in Section 860G(a)(3) to affect adversely the enforceability of the Code and no such Mortgage Loan or (C) federal savings and loan associations or national banks having principal offices in such state or (D) not doing business in such state;
12. With respect to the Initial Mortgage Loans, as of September 1, 2001, (i) all payments required to be made on each Initial Mortgage Loan under the terms of the related Mortgage Note have been made, except for approximately [0.95]% of the Initial Mortgage Loans (by Principal Balance as of [_________] [___], [____]) which are up to [59] days delinquent and (ii) no payment required to be made on any Initial Mortgage Loan has been more than [59] days delinquent more than once during the twelve (12) month period immediately preceding [_________] [___], [____];
13. Each of the documents and instruments included in a loan-to-value ratio (calculated Mortgage File is duly executed and in due and proper form and each such document or instrument is in a form generally acceptable to prudent institutional mortgage lenders that regularly originate or purchase mortgage loans;
14. The Mortgage Notes and the related Mortgages 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, receivership, moratorium or other similar laws relating to or affecting the REMIC Provisions) rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in excess 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 such parties. The Mortgagor is a natural person who is a party to the Mortgage Note and the Mortgage in an individual capacity, and not in the capacity of 125%; none a trustee or otherwise;
15. Any and all requirements of any federal, state or local law, including, without limitation, usury, truth-in-lending, real estate settlement procedures, consumer credit protection, equal credit opportunity or disclosure laws, applicable to the origination and servicing of the Mortgage Loans are either "consumer credit contracts" or "purchase money loans" as such terms are defined in 16 C.F.R. ss. 433; with respect otherwise applicable to each Mortgage Loan that is a "mortgage" as such term is defined in 15 U.S.C. 1602(aa), no obligor has or will have a claim or defense under such Mortgage Loan;
(v) As of the Cut-off Date, no Initial Mortgage Loan has a Loan-to-Value Ratio in excess of 100%; and Mortgage Loans representing not more thanhave been complied with, and the Seller has and shall maintain in its possession, available for the Trustee's and the Certificate Insurer's inspection, and shall deliver to the Trustee or the Certificate Insurer, as applicable, upon demand, evidence of compliance with all such requirements;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Renaissance Mortgage Acceptance Corp)
Representations and Warranties of the Seller Regarding the Mortgage Loans. (a) The Seller represents and warrants to the Trustee, the Depositor, the Servicer and the Trustee on behalf of the Certificateholders as follows as of the Closing Date and, with respect to any Subsequent Mortgage Loan, as of the Subsequent Transfer Date (in either case except as otherwise expressly stated) that, as to each Mortgage Loan conveyed to the Trust by itDate:
(i) 1. The information with respect to each Mortgage Loan set forth in on each of the Mortgage Loan Schedule or Subsequent Mortgage Loan and the Prepayment Charge Schedule is complete, true and correct as of the related Cut-off Date or related Subsequent Transfer Datedates as of which the information therein is given;
2. The Mortgage Notes and the Mortgages have not been assigned or pledged by the Seller to any Person other than warehouse lenders, and immediately prior to the transactions herein contemplated, the Seller had good and marketable title thereto, and was the sole owner and holder of the Mortgage Loans free and clear of any and all liens, claims, encumbrances, participation interests, equities, pledges, charges or security interests of any nature (collectively, a "Lien"), other than any such Lien released simultaneously with the sale contemplated herein, and had full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same pursuant to this Agreement, and immediately upon the transfer and assignment of each Mortgage Loan as contemplated by this Agreement, the Trust will be the sole beneficial owner of, each Mortgage Loan free and clear of any lien, claim, participation interest, mortgage, security interest, pledge, charge or other encumbrance or other interest of any nature;
3. With respect to any Mortgage Loan that is not a Cooperative Loan, each Mortgage is a valid and existing lien on the property therein described, and each Mortgaged Property is free and clear of all encumbrances and liens having priority over the lien of the Mortgage, except (i) liens for real estate taxes and special assessments not yet due and payable, (ii) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal made in connection with the origination of the related Mortgage Loan, (iii) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by such Mortgage, (iv) in the case of a Mortgaged Property that is a condominium or an individual unit in a planned unit development, liens for common charges permitted by statute and (v) in the case of a Mortgage Loan secured by a second lien on the related Mortgaged Property, the related First Lien. Any security agreement, chattel mortgage or equivalent document related to the Mortgage and delivered to the Trustee or the Custodian on behalf of the Trustee establishes in the Seller a valid and subsisting lien on the property described therein, and the Seller has full right to sell and assign the same to the Trust;
4. The terms of each Mortgage Note and Mortgage have not been impaired, altered or modified in any respect, except by a written instrument which has been recorded, if necessary to protect the interests of the Trust, and which has been delivered to the Trustee or the Custodian on behalf of the Trustee. The substance of any such alteration or modification is reflected on the Mortgage Loan Schedule;
5. No instrument of release or waiver has been executed in connection with any Mortgage Loan, and no Mortgagor has been released, in whole or in part, except in connection with an assumption agreement which has been approved by the primary mortgage guaranty insurer, if any, and which has been delivered to the Trustee or the Custodian on behalf of the Trustee;
6. Except with respect to delinquencies described in clause (12) hereof, no Mortgagor is in default in complying with the terms of its Mortgage Note or Mortgage, and the Seller has not waived any default, breach, violation or event of acceleration except that the Seller may have accepted late payments, and all taxes, governmental assessments, insurance premiums or water, sewer and municipal charges which previously became due and owing have been paid, or an escrow of funds has been established in an amount sufficient to pay for every such item which remains unpaid and which has been assessed but is not yet due and payable. The Seller has not advanced funds or induced, solicited or knowingly received any advance of funds by a party other than the Mortgagor, directly or indirectly, for the payment of any amount required by the Mortgage, except for interest accruing from the date of the Mortgage Note or date of disbursement of the Mortgage proceeds, whichever is more recent, to the day which precedes by one month the Due Date of the first installment of principal and interest;
7. There is no proceeding pending or threatened for the total or partial condemnation of any Mortgaged Property, nor is such a proceeding currently occurring, and such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or otherwise, so as to affect adversely the value of the Mortgaged Property as security for the Mortgage Loan or the use for which the premises were intended;
8. There are no mechanics' or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under law could give rise to such lien) affecting any Mortgaged Property which are, or may be, liens prior or equal to, or coordinate with, the lien of the Mortgage except those that are stated in the title insurance policy and for which related losses are affirmatively insured against by such policy;
9. All of the original improvements that were included for the purpose of determining the Appraised Value of each Mortgaged Property lie wholly within the boundaries and building restriction lines of such property, and no improvements on adjoining properties encroach upon the Mortgaged Property except those that are stated in the title insurance policy and for which related losses are affirmatively insured against by such policy;
10. No improvement located on or certified documentation set forth being part of any Mortgaged Property is in Section 2.01 (including violation of any applicable zoning law or regulation. All inspections, licenses and certificates required to be made or issued with respect to all material documents related thereto)occupied portions of the Mortgaged Property and, with respect to each Mortgage Loan has the use and occupancy of the same, including, but not limited to, certificates of occupancy and fire underwriting certificates, have been made or will be delivered to obtained from the Trustee on appropriate authorities and the Closing Date or as otherwise provided in Section 2.01 or Section 2.02, as applicable;
(iii) Each related Mortgaged Property is improved by a one- to four-family residential dwelling owned by lawfully occupied under applicable law;
11. All parties that have had any interest in any Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the related Mortgagor period in fee simple that is permanently affixed to which they held and disposed of such interest, were)
(1) in compliance with any and all licensing requirements of the land United States and constitutes real property under of the laws of the state in which wherein the Mortgaged Property is located but shall that are applicable to such parties and (2)(A) organized under the laws of such state or (B) qualified to do business in such state or exempt from such qualification in a manner so as not include co-operatives or mobile homes;
(iv) Each Mortgage Loan is a "qualified mortgage" as defined in Section 860G(a)(3) to affect adversely the enforceability of the Code and no such Mortgage Loan or (C) federal savings and loan associations or national banks having principal offices in such state or (D) not doing business in such state;
12. With respect to the Initial Mortgage Loans, as of August 31, 2000, (i) all payments required to be made on each Initial Mortgage Loan under the terms of the related Mortgage Note have been made except for approximately 0.76% and 1.42% of the Initial Mortgage Loans in Loan Group F and Loan Group A respectively (by Principal Balance as of August 31, 2000) are up to 59 days delinquent and (ii) no payment required to be made on any Initial Mortgage Loan has been more than 59 days delinquent more than once during the twelve month period immediately preceding August 31, 2000;
13. Each of the documents and instruments included in a loan-to-value ratio (calculated Mortgage File is duly executed and in due and proper form and each such document or instrument is in a form generally acceptable to prudent institutional mortgage lenders that regularly originate or purchase mortgage loans;
14. The Mortgage Notes and the related Mortgages 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, receivership, moratorium or other similar laws relating to or affecting the REMIC Provisions) rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in excess 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 such parties. The Mortgagor is a natural person who is a party to the -45- Mortgage Note and the Mortgage in an individual capacity, and not in the capacity of 125%; none a trustee or otherwise;
15. Any and all requirements of any federal, state or local law, including, without limitation, usury, truth-in-lending, real estate settlement procedures, consumer credit protection, equal credit opportunity or disclosure laws, applicable to the origination and servicing of the Mortgage Loans are either "consumer credit contracts" or "purchase money loans" as such terms are defined in 16 C.F.R. ss. 433; with respect otherwise applicable to each Mortgage Loan that is a "mortgage" as such term is defined in 15 U.S.C. 1602(aa), no obligor has or will have a claim or defense under such Mortgage Loan;
(v) As of the Cut-off Date, no Initial Mortgage Loan has a Loan-to-Value Ratio in excess of 100%; and Mortgage Loans representing not more thanhave been complied with, and the Seller has and shall maintain in its possession, available for the Trustee's and the Certificate Insurer's inspection, and shall deliver to the Trustee or the Certificate Insurer, as applicable, upon demand, evidence of compliance with all such requirements;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Delta Funding Corp /De/)
Representations and Warranties of the Seller Regarding the Mortgage Loans. The Seller represents and warrants to the Trustee, the Depositor, the Servicer Trustee and the Certificateholders as of the Closing Date andDate, with respect to any Subsequent Mortgage Loan, as of the Subsequent Transfer Date (in either case except as otherwise expressly stated) that, that as to each Mortgage Loan conveyed to the Trust by it:
(i) The information with respect to each Mortgage Loan set forth in the Mortgage Loan Schedule or Subsequent Mortgage Loan Schedule is true and correct as of the related Cut-off Date or related Subsequent Transfer Date;
(ii) All of the original or certified documentation set forth in Section 2.01 (including all material documents related thereto), with respect to each Mortgage Loan has been or will be delivered to the Trustee on the Closing Date or as otherwise provided in Section 2.01 or Section 2.022.01, as applicable;
(iii) Each The related Mortgaged Property is improved by a one- to four-family residential dwelling owned by the related Mortgagor in fee simple simple, which may include condominiums, townhouses and manufactured housing or modular homes that is are permanently affixed to the land and constitutes constitute real property under the laws of the state in which the Mortgaged Property is located but shall not include co-operatives or mobile homes;
(iv) Each Mortgage Loan is a "qualified mortgage" as defined in Section 860G(a)(3) of the Code and no such Mortgage Loan has a loan-to-value ratio (calculated in accordance with the REMIC Provisions) in excess of 125%; none of the Mortgage Loans are either "consumer credit contracts" or "purchase money loans" as such terms are defined in 16 C.F.R. ss. 433; with respect to each Mortgage Loan that is a "mortgage" as such term is defined in 15 U.S.C. 1602(aa), no obligor has or will have a claim or defense under such Mortgage Loan;
(v) As of the Cut-off Date, Date no Initial Mortgage Loan included in the Fixed Rate Group has a Combined Loan-to-Value Ratio in excess of 90% and no Mortgage Loan included in the Adjustable Rate Group has a Loan-to-Value Ratio in excess of 10090%; and , except that five Mortgage Loans representing not more thanthan 0.17% of the initial Fixed Rate Group Balance have Combined Loan-to-Value Ratios of up to 95%, and four Mortgage Loans representing not more than 0.12%, and one Mortgage Loan representing not more than 0.04%, respectively, of the initial Adjustable Rate Group Balance have Combined Loan-to-Value Ratios of up to 95% and 100%;
(v) Each Mortgage Loan was originated by an Affiliate of the Company or by an originator not affiliated with the Company authorized to originate such Mortgage Loan and is being serviced by the Company;
(vi) Each Mortgage Loan included in the Fixed Rate Group as of the Cut-off Date bears a fixed Mortgage Loan Rate of at least 7.75% per annum and each Mortgage Loan included in the Adjustable Rate Group as of the Cut-off Date is an Adjustable Rate Mortgage Loan that has a Minimum Rate of not less than 3.00% per annum and a Mortgage Loan Rate as of the Cut-off Date of not less than 5.00% per annum; the terms of each Mortgage Loan included in the Adjustable Rate Group require that adjustments in the related Mortgage Loan Rate be made employing the related Index measured as of a date not more than three months prior to the related adjustment date;
(vii) Each Mortgage Note provides for a schedule of substantially level and equal Monthly Mortgage Payments (subject, in the case of an Adjustable Rate Mortgage Loan, to periodic adjustments relating to changes in the Mortgage Loan Rate) that are sufficient to amortize fully the principal balance of such Mortgage Note on or before its maturity date, except that, Mortgage Notes with respect to Mortgage Loans in the Fixed Rate Group representing not more than 8.43% of the initial Fixed Rate Group Balance and Mortgage Notes with respect to Mortgage Loans in the Adjustable Rate Group representing not more than 0.13% of the initial Adjustable Rate Group Balance, provide for level and equal Monthly Mortgage Payments that are sufficient to amortize fully the principal balances of such Notes over a period not exceeding 30 years, with "balloon" payments at stated maturity that are substantially in excess of the Monthly Mortgage Payments;
(viii) Each Mortgage is a valid and subsisting lien of record on the Mortgaged Property having the priority indicated on the Mortgage Loan Schedule, subject, in the case of any Junior Mortgage Loan, only to any Senior Lien or Senior Liens on such Mortgaged Property and subject in all cases to the exceptions to title set forth in the title insurance policy 50 with respect to the related Mortgage Loan, which exceptions are generally acceptable to home equity mortgage lending institutions, and such other exceptions to which similar properties are commonly subject and that do not individually, or in the aggregate, materially and adversely affect the benefits of the security intended to be provided by such Mortgage;
(ix) Immediately prior to the sale, transfer and assignment herein contemplated, the Company held good and indefeasible title to, and was the sole owner of, each Mortgage Loan conveyed by the Company subject to no liens, charges, mortgages, encumbrances or rights of others, except with respect to liens that will be released simultaneously with such transfer and assignment; and immediately upon the transfer and assignment herein contemplated, the Trustee will hold good and indefeasible title to, and be the sole owner of, each Mortgage Loan subject to no liens, charges, mortgages, encumbrances or rights of others;
(x) The Mortgage Loan Rate for each Adjustable Rate Mortgage Loan will be adjustable on each related Adjustment Date and will equal the sum, rounded upward to the nearest three decimal places, of the Index plus the related Gross Margin, subject to any related Minimum Rates, Maximum Rates or any limitations or periodic adjustments, in each case as specified in the related Mortgage Loan Schedule. No Adjustable Rate Mortgage Loan is subject to negative amortization. The Mortgage Notes relating to not more than 60% of the Mortgage Loans in the Adjustable Rate Group, by initial Adjustable Rate Group Balance or by the Adjustable Rate Group Balance as of the Closing Date, provide for initial Adjustment Dates that are more than one year and less than three years from the Cut-off Date;
(xi) With respect to any Adjustable Rate Mortgage Loan, no mortgage document in the Mortgage File contains any provision permitting or requiring conversion of the Mortgage Loan to a fixed interest rate nor is the Mortgage Loan Rate conditioned upon Mortgagor maintaining accounts with Seller;
(xii) As of the Cut-off Date (a) no Mortgage Loan had two or more Monthly Mortgage Payments past due and not more than 0.90% of the Mortgage Loans (by Cut-off Date Principal Balance) had one or more Monthly Payments past due, (b) no Mortgage Loan has been 60 or more days contractually delinquent more than once during the 12-month period immediately preceding the Cut-off Date and (c) no Mortgage Loan has been 90 or more days delinquent in the 12 months preceding the Cut-off Date;
(xiii) As of the Cut-off Date, there is no delinquent tax or assessment lien on any Mortgaged Property, and, to the best knowledge of the Company, each Mortgaged Property is free of substantial damage and is in good repair and is not affected by hazardous or toxic wastes or substances;
(xiv) There is no offset, right of rescission, counterclaim or defense, including the defense of usury, with respect to any Mortgage Note or Mortgage, nor will the operation of any of the terms of the Mortgage Note or the Mortgage, or the exercise of any right 51 thereunder, render either the Mortgage Note or the Mortgage unenforceable in whole or in part, or subject to any right to rescission, set-off, counterclaim or defense, including the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto;
(xv) As of the Cut-off Date, there is no mechanic's lien or claim for work, labor or material affecting any Mortgaged Property that is or may be a lien prior to, or equal to or on a parity with, the lien of the related Mortgage except those that are insured against by any title insurance policy referred to in paragraph (xvii) below;
(xvi) To the best of the Seller's knowledge, each Mortgage Loan at the time it was made complied in all material respects with applicable local, state and federal laws and regulations, including, without limitation, the federal Truth-in-Lending Act and other consumer protection laws, real estate settlement procedure, usury, equal credit opportunity, disclosure and recording laws;
(xvii) With respect to each Mortgage Loan, a lender's title insurance policy (issued in standard form by a title insurance company authorized to transact business in the state where the related Mortgaged Property is located), in an amount at least equal to the Original Principal Amount of such Mortgage Loan insuring the mortgagee's interest under the related Mortgage Loan as the holder of a valid lien of record on the real property described in the related Mortgage (subject only to exceptions of the character referred to in paragraph (viii) above), was effective on the date of the origination of such Mortgage Loan, and, as of the Closing Date, such policy is in full force and effect and thereafter such policy shall continue in full force and effect and shall inure to the benefit of the Certificateholders upon consummation of the transactions contemplated by this Agreement;
(xviii) As of the Cut-off Date, either (a) the improvements upon each Mortgaged Property are covered by a valid and existing hazard insurance policy (which may be a blanket policy) with a generally acceptable carrier that provides for fire and extended coverage representing coverage not less than the least of (a) the outstanding principal balance of the related Mortgage Loan (together, in the case of a Junior Mortgage Loan, with the outstanding principal balance of the Senior Lien), (b) the minimum amount required to compensate for damage or loss on a replacement cost basis or (c) the full insurable value of the Mortgaged Property or (b) in the case of a Junior Mortgage Loan, a policy has been issued by a generally acceptable carrier that will cover the full Principal Balance of such Junior Mortgage Loan in the event of a loss covered by a hazard typically insured against by the type of policy referred to in clause (xviii)(a);
(xix) If any Mortgaged Property is in an area identified in the Federal Register by FEMA as having special flood hazards, a flood insurance policy in a form meeting the requirements of the current guidelines of the Federal Insurance Administration, if obtainable with respect to such Mortgaged Property, is in effect with respect to such Mortgaged Property with a generally acceptable carrier in an amount representing coverage not less than the least of (A) the outstanding principal balance of the related Mortgage Loan (together, in
(xx) Each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and by general principles of equity (whether considered in a proceeding or action in equity or at law), and all parties to each Mortgage Loan had full legal capacity to execute all documents relating to such Mortgage Loan and convey the estate therein purported to be conveyed; with respect to each Mortgage Loan, only one original Mortgage Note exists;
(xxi) The Seller has caused and will cause to be performed any and all acts required to be performed to preserve the rights and remedies of the Trustee in any insurance policies applicable to each Mortgage Loan, including any necessary notifications of insurers, assignments of policies or interests therein, and establishment of co-insured, joint loss payee and mortgagee rights in favor of the Trustee;
(xxii) As of the Cut-off Date no more than 0.39% of the initial Fixed Rate Group Balance is secured by Mortgaged Properties located within any single zip code area and no more than 0.29% of the initial Adjustable Rate Group Balance is secured by Mortgaged Properties located within any single zip code area;
(xxiii) Each original Mortgage has been recorded or is in the process of being recorded, and all subsequent assignments of the original Mortgage (other than the assignment from the Seller to the Trustee and any assignment to the Seller or an affiliate thereof) have been recorded in the appropriate jurisdictions as to which no Opinion of Counsel was delivered pursuant to Section 2.01 or 2.02, as applicable, or such Mortgages and assignments are in the process of being recorded);
(xxiv) The terms of each Mortgage Note and each Mortgage have not been impaired, altered or modified in any respect, except by a written instrument that has been recorded, if necessary, to protect the interest of the Certificateholders and that has been delivered to the Trustee. The substance of any such alteration or modification is reflected on the Mortgage Loan Schedule and has been approved by the primary mortgage guaranty insurer, if any;
(xxv) The proceeds of each Mortgage Loan have been fully disbursed, and there is no obligation on the part of the mortgagee to make future advances thereunder. Any and all requirements as to completion of any on-site or off-site improvements and as to disbursements of any escrow funds therefor have been complied with. All costs, fees and expenses incurred in making or closing or recording such Mortgage Loans were paid;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Aames Capital Corp)
Representations and Warranties of the Seller Regarding the Mortgage Loans. The Seller represents and warrants to the Trustee, the Depositor, the Servicer Trustee and the Certificateholders and the Financial Guaranty Insurer as of the Closing Date and, with respect to any Subsequent Mortgage Loan, as of the Subsequent Transfer Date (in either case except as otherwise expressly stated) that), that as to each Mortgage Loan conveyed to the Trust by it:
(i) The information with respect to each Mortgage Loan set forth in the Mortgage Loan Schedule or Subsequent Mortgage Loan Schedule is true and correct as of the related Cut-off Date or related Subsequent Transfer Date;
(ii) All of the original or certified documentation set forth in Section 2.01 (including all material documents related thereto), with respect to each Mortgage Loan has been or will be delivered to the Trustee on the Closing Date or as otherwise provided in Section 2.01 or Section 2.02, as applicable;
(iii) Each related Mortgaged Property is improved by a one- to four-family residential dwelling owned by the related Mortgagor in fee simple simple, which may include condominiums, townhouses and manufactured housing or modular homes that is are permanently affixed to the land and constitutes constitute real property under the laws of the state in which the Mortgaged Property is located but shall not include co-operatives or mobile homes;
(iv) Each Mortgage Loan is a "qualified mortgage" as defined in Section 860G(a)(3) of the Code and no such Mortgage Loan has a loan-to-value ratio (calculated in accordance with the REMIC Provisions) in excess of 125%; none of the Mortgage Loans are either "consumer credit contracts" or "purchase money loans" as such terms are defined in 16 C.F.R. ss. 433; with respect to each Mortgage Loan that is a "mortgage" as such term is defined in 15 U.S.C. 1602(aa), no obligor has or will have a claim or defense under such Mortgage Loan;
(v) As of the Cut-off Date or Subsequent Cut-off Date, as appropriate, no Initial Mortgage Loan included in the Fixed Rate Group has a Combined Loan-to-Value Ratio in excess of 90% and no Mortgage Loan included in the Adjustable Rate Group has a Loan-to-Value Ratio in excess of 10090%; and , except that 4 Mortgage Loans representing not more thanthan .24% of the initial Fixed Rate Group Balance have Combined Loan-to-Value Ratios of up to 95%;
(v) Each Mortgage Loan was originated by an Affiliate of the Company or by an originator not affiliated with the Company authorized to originate such Mortgage Loan and is being serviced by the Company;
(vi) Each Mortgage Loan included in the Fixed Rate Group as of the Cut-off Date bears a fixed Mortgage Loan Rate of at least 6.50% per annum and each Mortgage Loan included in the Adjustable Rate Group as of the Cut-off Date is an Adjustable Rate Mortgage Loan that has a Minimum Rate of not less than 4.43% per annum and a Mortgage Loan Rate as of the Cut-off Date of not less than 9.876% per annum; the terms of each Mortgage Loan included in the Adjustable Rate Group require that adjustments in the related Mortgage Loan Rate be made employing the related Index measured as of a date not more than three months prior to the related adjustment date;
(vii) Each Mortgage Note provides for a schedule of substantially level and equal Monthly Mortgage Payments (subject, in the case of an Adjustable Rate Mortgage Loan, to periodic adjustments relating to changes in the Mortgage Loan Rate) that are sufficient to amortize fully the principal balance of such Mortgage Note on or before its maturity date, except that, Mortgage Notes with respect to Mortgage Loans in the Fixed Rate Group representing not more than 5.13% of the initial Fixed Rate Group Balance, provide for level and equal Monthly Mortgage Payments that are sufficient to amortize fully the principal balances of such Notes over a period not exceeding 30 years, with "balloon" payments at stated maturity that are substantially in excess of the Monthly Mortgage Payments;
(viii) Each Mortgage is a valid and subsisting lien of record on the Mortgaged Property having the priority indicated on the Mortgage Loan Schedule, subject, in the case of any Junior Mortgage Loan, only to any Senior Lien or Senior Liens on such Mortgaged Property and subject in all cases to the exceptions to title set forth in the title insurance policy with respect to the related Mortgage Loan, which exceptions are generally acceptable to home equity mortgage lending institutions, and such other exceptions to which similar properties are commonly subject and that do not individually, or in the aggregate, materially and adversely affect the benefits of the security intended to be provided by such Mortgage;
(ix) Immediately prior to the sale, transfer and assignment herein contemplated, the Company held good and indefeasible title to, and was the sole owner of, each Mortgage Loan conveyed by the Company subject to no liens, charges, mortgages, encumbrances or rights of others, except with respect to liens that will be released simultaneously with such transfer and assignment; and immediately upon the transfer and assignment herein contemplated, the Trustee will hold good and indefeasible title to, and be the sole owner of, each Mortgage Loan subject to no liens, charges, mortgages, encumbrances or rights of others;
(x) The Mortgage Loan Rate for each Adjustable Rate Mortgage Loan will be adjustable on each related Adjustment Date and will equal the sum, rounded upward to the nearest three decimal places, of the Index plus the related Gross Margin, subject to any related Minimum Rates, Maximum Rates or any limitations or periodic adjustments, in each case as specified in the related Mortgage Loan Schedule. 14 Mortgage Loans are subject to negative amortization. The Mortgage Notes relating to not more than 67.72% of the Mortgage Loans in the Adjustable Rate Group, by Original Adjustable Rate Group Balance or by the Adjustable Rate Group Balance as of the Closing Date, provide for initial Adjustment Dates that are more than one year and less than three years from the Cut-off Date;
(xi) With respect to any Adjustable Rate Mortgage Loan, no mortgage document in the Mortgage File contains any provision permitting or requiring conversion of the Mortgage Loan to a fixed interest rate nor is the Mortgage Loan Rate conditioned upon Mortgagor maintaining accounts with Seller;
(xii) As of the Cut-off Date or Subsequent Cut-off Date, as appropriate (a) no Mortgage Loan had two or more Monthly Mortgage Payments past due and not more than 2.98% of the Mortgage Loans (by Cut-off Date Principal Balance) had one or more Monthly Payments past due, (b) no Mortgage Loan has been 60 or more days contractually delinquent more than once during the 12-month period immediately preceding the Cut-off Date and (c) no Mortgage Loan has been 90 or more days delinquent in the 12 months preceding the Cut-off Date;
(xiii) As of the Cut-off Date or Subsequent Cut-off Date, as appropriate, there is no delinquent tax or assessment lien on any Mortgaged Property, and, to the best knowledge of the Company, each Mortgaged Property is free of damage and is in good repair and is not affected by hazardous or toxic wastes or substances;
(xiv) There is no offset, right of rescission, counterclaim or defense, including the defense of usury, with respect to any Mortgage Note or Mortgage, nor will the operation of any of the terms of the Mortgage Note or the Mortgage, or the exercise of any right thereunder, render either the Mortgage Note or the Mortgage unenforceable in whole or in part, or subject to any right to rescission, set-off, counterclaim or defense, including the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto;
(xv) As of the Cut-off Date or Subsequent Cut-off Date, as appropriate, there is no mechanic's lien or claim for work, labor or material affecting any Mortgaged Property that is or may be a lien prior to, or equal to or on a parity with, the lien of the related Mortgage except those that are insured against by any title insurance policy referred to in paragraph (xvii) below;
(xvi) To the best of the Seller's knowledge, each Mortgage Loan at the time it was made complied in all material respects with applicable local, state and federal laws and regulations, including, without limitation, the federal Truth-in-Lending Act and other consumer protection laws, real estate settlement procedure, usury, equal credit opportunity, disclosure and recording laws;
(xvii) With respect to each Mortgage Loan, a lender's title insurance policy (issued in standard form by a title insurance company authorized to transact business in the state where the related Mortgaged Property is located), in an amount at least equal to the Original Principal Amount of such Mortgage Loan insuring the mortgagee's interest under the related Mortgage Loan as the holder of a valid lien of record on the real property described in the related Mortgage (subject only to exceptions of the character referred to in paragraph (viii) above), was effective on the date of the origination of such Mortgage Loan, and, as of the Closing Date, such policy is in full force and effect and thereafter such policy shall continue in full force and effect and shall inure to the benefit of the Certificateholders upon consummation of the transactions contemplated by this Agreement;
(xviii) As of the Cut-off Date or Subsequent Cut-off Date, as appropriate, either (a) the improvements upon each Mortgaged Property are covered by a valid and existing hazard insurance policy (which may be a blanket policy) with a generally acceptable carrier that provides for fire and extended coverage representing coverage not less than the least of (a) the outstanding principal balance of the related Mortgage Loan (together, in the case of a Junior Mortgage Loan, with the outstanding principal balance of the Senior Lien), (b) the
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Aames Capital Corp)
Representations and Warranties of the Seller Regarding the Mortgage Loans. (a) The Seller hereby represents and warrants to the TrusteeDepositor and the Insurer, and the Depositor hereby assigns its rights with respect to such representations and warranties to the Trust, the Depositor, Indenture Trustee on behalf of the Servicer Noteholders and the Certificateholders and the Insurer as follows as of the Closing Date andDate, and with respect to any Subsequent each Eligible Substitute Mortgage Loan, as of the Subsequent Transfer Date date of such substitution (in either case except as otherwise expressly stated) that, as to each Mortgage Loan conveyed and to the Trust by it:extent expressly stated therein as of such other time):
(i) The information with respect to each Mortgage Loan set forth in the Mortgage Loan Schedule or Subsequent Mortgage Loan Schedule is complete, true and correct in all material respects as of the related Cut-off Date or related Subsequent Transfer Closing Date;
(ii) All As of the original or certified documentation set forth Closing Date, for each Mortgage Loan, the related Mortgage File contains the documents and instruments referred to in Section 2.01 (including all material documents related thereto2.01(e)(ii), with respect to each Mortgage Loan has been or will be delivered to the Trustee on the Closing Date or as otherwise provided in Section 2.01 or Section 2.02, as applicable;
(iii) Each related Mortgaged Property relating to a Mortgage Loan is improved by a one- to four-family residential dwelling owned by the related Mortgagor in fee simple that is permanently affixed to the land dwelling, which does not include cooperatives or mobile homes and constitutes does not constitute other than real property under the laws of the state in which the Mortgaged Property is located but shall not include co-operatives or mobile homeslaw;
(iv) Each Mortgage Loan is a "qualified mortgage" as defined in Section 860G(a)(3being serviced by the Servicer or one or more Subservicers according to Accepted Servicing Practices;
(v) Each Mortgage Note provides for (a) Monthly Payments which are at least equal to accrued interest during such Accrual Period and (b) at the maturity of the Code and no related Mortgage Loan, payment in full of the principal balance of such Mortgage Note;
(vi) The Mortgage Notes related to Mortgage Loans bear a variable Loan Rate and there is only one original of each such Mortgage Note;
(vii) Each Mortgage is a valid and subsisting first or second lien of record on the Mortgaged Property subject, in the case of any second Mortgage Loan, only to a Senior Lien or Senior Liens on such Mortgaged Property and subject in all cases to the exceptions to title set forth in the title insurance policy, if any, with respect to the related Mortgage Loan, which exceptions are generally acceptable to second mortgage lending companies (or first mortgage lending companies in the case of first lien Mortgage Loans), and such other exceptions to which similar properties are commonly subject and which do not individually, or in the aggregate, materially and adversely affect the benefits of the security intended to be provided by such Mortgage;
(viii) No Mortgage Note and related Mortgage has been assigned or pledged and immediately prior to the transfer and assignment contemplated in the Mortgage Loan Purchase Agreement, the Seller held good, marketable and indefeasible title to, and was the sole owner and holder of, each Mortgage Loan subject to no Liens; the Seller has full right and authority under all governmental and regulatory bodies having jurisdiction over the Seller, subject to no interest or participation of, or agreement with, any party, to sell and assign the same pursuant to the Mortgage Loan Purchase Agreement; and immediately upon the transfer and assignment therein contemplated, the Seller shall have transferred all of its right, title and interest in and to each Mortgage Loan to the Purchaser (or its assignee) and the Purchaser (or its assignee) will hold good, equitable, and when recorded, marketable title to, and be the sole owner of, each Mortgage Loan subject to no Liens; without limiting the generality of the foregoing, the Seller has taken all steps necessary to effect the release of each Mortgage Loan from any lien thereon held by a loan-to-value ratio Federal Home Loan Bank;
(calculated in accordance with the REMIC Provisionsix) in excess of 125%; none None of the Mortgage Loans are either "consumer credit contracts" or "purchase money loans" as such terms are defined in 16 C.F.R. ss. 433; with respect is subject to each Mortgage Loan that is a "mortgage" as such term is defined in 15 U.S.C. 1602(aa), no obligor has or will have a claim or defense under such Mortgage Loanbankruptcy proceeding;
(vx) As of the Cut-off Date, no Initial none of the Mortgage Loans was more than 30 days Delinquent;
(xi) No Mortgage Loan is subject to any right of rescission, set off, counterclaim or defense, including the defense of usury, nor will the operation of any of the terms of any Mortgage Note or Mortgage, or the exercise of any right thereunder, render either the Mortgage Note or the Mortgage unenforceable in whole or in part, or subject to any right of rescission, set off, counterclaim or defense, including the defense of usury, and no such right of rescission, set off, counterclaim or defense has been asserted with respect thereto;
(xii) There is no mechanics' lien or claim for work, labor or material affecting any Mortgaged Property which is or may be a Loan-lien prior to-Value Ratio , or equal or coordinate with, the lien of the related Mortgage, and no rights are outstanding that under law could give rise to such a lien except those which are insured against by the title insurance policy;
(a) Each Mortgage Loan at the time it was made complied with, and each Mortgage Loan at all times was serviced in excess of 100%; compliance with, in each case, in all material respects, applicable state, local and Mortgage Loans representing not more thanfederal laws and regulations, including, without limitation, usury, equal credit opportunity, consumer credit, applicable predatory and
Appears in 1 contract
Representations and Warranties of the Seller Regarding the Mortgage Loans. (a) The Seller represents and warrants to the Trustee, the Depositor, the Servicer and the Trustee on behalf of the Certificateholders as follows as of the Closing Date and, with respect to any Subsequent Mortgage Loan, as of the Subsequent Transfer Date (in either case except as otherwise expressly stated) that, as to each Mortgage Loan conveyed to the Trust by itDate:
(i) 1. The information with respect to each Mortgage Loan set forth in on the Mortgage Loan Schedule or Subsequent Mortgage Loan Schedule is complete, true and correct as of the related Cut-off Date or related Subsequent Transfer Datedates as of which the information therein is given;
2. The Mortgage Notes and the Mortgages have not been assigned or pledged by the Seller to any Person other than warehouse lenders, and immediately prior to the transactions herein contemplated, the Seller had good and marketable title thereto, and was the sole owner and holder of the Mortgage Loans free and clear of any and all liens, claims, encumbrances, participation interests, equities, pledges, charges or security interests of any nature (collectively, a "Lien"), other than any such Lien released simultaneously with the sale contemplated herein, and had full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same pursuant to this Agreement, and immediately upon the transfer and assignment of each Mortgage Loan as contemplated by this Agreement, the Trust will be the sole beneficial owner of, each Mortgage Loan free and clear of any lien, claim, participation interest, mortgage, security interest, pledge, charge or other encumbrance or other interest of any nature;
3. With respect to any Mortgage Loan that is not a Cooperative Loan, each Mortgage is a valid and existing lien on the property therein described, and each Mortgaged Property is free and clear of all encumbrances and liens having priority over the lien of the Mortgage, except (i) liens for real estate taxes and special assessments not yet due and payable, (ii) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal made in connection with the origination of the related Mortgage Loan, (iii) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by such Mortgage, (iv) in the case of a Mortgaged Property that is a condominium or an individual unit in a planned unit development, liens for common charges permitted by statute and (v) in the case of a Mortgage Loan secured by a second lien on the related Mortgaged Property, the related First Lien. Any security agreement, chattel mortgage or equivalent document related to the Mortgage and delivered to the Trustee or the Custodian on behalf of the Trustee establishes in the Seller a valid and subsisting lien on the property described therein, and the Seller has full right to sell and assign the same to the Trust;
4. The terms of each Mortgage Note and Mortgage have not been impaired, altered or modified in any respect, except by a written instrument which has been recorded, if necessary to protect the interests of the Trust, and which has been delivered to the Trustee or the Custodian on behalf of the Trustee. The substance of any such alteration or modification is reflected on the Mortgage Loan Schedule;
5. No instrument of release or waiver has been executed in connection with any Mortgage Loan, and no Mortgagor has been released, in whole or in part, except in connection with an assumption agreement which has been approved by the primary mortgage guaranty insurer, if any, and which has been delivered to the Trustee or the Custodian on behalf of the Trustee;
6. Except with respect to delinquencies described in clause (12) hereof, no Mortgagor is in default in complying with the terms of its Mortgage Note or Mortgage, and the Seller has not waived any default, breach, violation or event of acceleration except that the Seller may have accepted late payments, and all taxes, governmental assessments, insurance premiums or water, sewer and municipal charges which previously became due and owing have been paid, or an escrow of funds has been established in an amount sufficient to pay for every such item which remains unpaid and which has been assessed but is not yet due and payable. The Seller has not advanced funds or induced, solicited or knowingly received any advance of funds by a party other than the Mortgagor, directly or indirectly, for the payment of any amount required by the Mortgage, except for interest accruing from the date of the Mortgage Note or date of disbursement of the Mortgage proceeds, whichever is more recent, to the day which precedes by one month the Due Date of the first installment of principal and interest;
7. There is no proceeding pending or threatened for the total or partial condemnation of any Mortgaged Property, nor is such a proceeding currently occurring, and such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or otherwise, so as to affect adversely the value of the Mortgaged Property as security for the Mortgage Loan or the use for which the premises were intended;
8. There are no mechanics' or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under law could give rise to such lien) affecting any Mortgaged Property which are, or may be, liens prior or equal to, or coordinate with, the lien of the Mortgage except those that are stated in the title insurance policy and for which related losses are affirmatively insured against by such policy;
9. All of the original improvements that were included for the purpose of determining the Appraised Value of each Mortgaged Property lie wholly within the boundaries and building restriction lines of such property, and no improvements on adjoining properties encroach upon the Mortgaged Property except those that are stated in the title insurance policy and for which related losses are affirmatively insured against by such policy;
10. No improvement located on or certified documentation set forth being part of any Mortgaged Property is in Section 2.01 (including violation of any applicable zoning law or regulation. All inspections, licenses and certificates required to be made or issued with respect to all material documents related thereto)occupied portions of the Mortgaged Property and, with respect to each Mortgage Loan has the use and occupancy of the same, including, but not limited to, certificates of occupancy and fire underwriting certificates, have been made or will be delivered to obtained from the Trustee on appropriate authorities and the Closing Date or as otherwise provided in Section 2.01 or Section 2.02, as applicable;
(iii) Each related Mortgaged Property is improved by a one- to four-family residential dwelling owned by lawfully occupied under applicable law;
11. All parties that have had any interest in any Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the related Mortgagor period in fee simple that is permanently affixed to which they held and disposed of such interest, were)
(1) in compliance with any and all licensing requirements of the land United States and constitutes real property under of the laws of the state in which wherein the Mortgaged Property is located but shall that are applicable to such parties and (2)(A) organized under the laws of such state or (B) qualified to do business in such state or exempt from such qualification in a manner so as not include co-operatives or mobile homes;
(iv) Each Mortgage Loan is a "qualified mortgage" as defined in Section 860G(a)(3) to affect adversely the enforceability of the Code and no such Mortgage Loan or (C) federal savings and loan associations or national banks having principal offices in such state or (D) not doing business in such state;
12. With respect to the Initial Mortgage Loans, as of the Cut-Off Date, (i) all payments required to be made on each Initial Mortgage Loan under the terms of the related Mortgage Note have been made except for approximately 1.32% and 1.55% of the Initial Mortgage Loans in Loan Group F and Loan Group A respectively (by Cut-Off Date Principal Balance) are up to 59 days delinquent and (ii) no payment required to be made on any Initial Mortgage Loan has been more than 59 days delinquent more than once during the twelve month period immediately preceding the Cut-Off Date;
13. Each of the documents and instruments included in a loan-to-value ratio (calculated Mortgage File is duly executed and in due and proper form and each such document or instrument is in a form generally acceptable to prudent institutional mortgage lenders that regularly originate or purchase mortgage loans;
14. The Mortgage Notes and the related Mortgages 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, receivership, moratorium or other similar laws relating to or affecting the REMIC Provisions) rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in excess 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 such parties. The Mortgagor is a natural person who is a party to the Mortgage Note and the Mortgage in an individual capacity, and not in the capacity of 125%; none a trustee or otherwise;
15. Any and all requirements of any federal, state or local law, including, without limitation, usury, truth-in-lending, real estate settlement procedures, consumer credit protection, equal credit opportunity or disclosure laws, applicable to the origination and servicing of the Mortgage Loans are either "consumer credit contracts" or "purchase money loans" as such terms are defined in 16 C.F.R. ss. 433; with respect otherwise applicable to each Mortgage Loan that is a "mortgage" as such term is defined in 15 U.S.C. 1602(aa), no obligor has or will have a claim or defense under such Mortgage Loan;
(v) As of the Cut-off Date, no Initial Mortgage Loan has a Loan-to-Value Ratio in excess of 100%; and Mortgage Loans representing not more thanhave been complied with, and the Seller has and shall maintain in its possession, available for the Trustee's and the Certificate Insurer's inspection, and shall deliver to the Trustee or the Certificate Insurer, as applicable, upon demand, evidence of compliance with all such requirements;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Delta Fund Hm Equ Ln 2000-2 Hm Equ Ln Ass BKD CRT Ser 2000-2)
Representations and Warranties of the Seller Regarding the Mortgage Loans. (a) The Seller hereby represents and warrants to the TrusteeDepositor and the Insurer, and the Depositor hereby assigns its rights with respect to such representations and warranties to the Trust, the Depositor, Indenture Trustee on behalf of the Servicer Noteholders and the Certificateholders and the Insurer as follows as of the Closing Date andDate, and with respect to any Subsequent each Eligible Substitute Mortgage Loan, as of the Subsequent Transfer Date date of such substitution (in either case except as otherwise expressly stated) that, as to each Mortgage Loan conveyed and to the Trust by it:extent expressly stated therein as of such other time):
(i) The information with respect to each Mortgage Loan set forth in the Mortgage Loan Schedule or Subsequent Mortgage Loan Schedule is complete, true and correct in all material respects as of the related Cut-off Date or related Subsequent Transfer Closing Date;
(ii) All As of the original or certified documentation set forth Closing Date, for each Mortgage Loan, the related Mortgage File contains the documents and instruments referred to in Section 2.01 (including all material documents related thereto2.01(c)(ii), with respect to each Mortgage Loan has been or will be delivered to the Trustee on the Closing Date or as otherwise provided in Section 2.01 or Section 2.02, as applicable;
(iii) Each related Mortgaged Property relating to a Mortgage Loan is improved by a one- to four-family residential dwelling owned by the related Mortgagor in fee simple that is permanently affixed to the land dwelling, which does not include cooperatives or mobile homes and constitutes does not constitute other than real property under the laws of the state in which the Mortgaged Property is located but shall not include co-operatives or mobile homeslaw;
(iv) Each Mortgage Loan is a "qualified mortgage" as defined in Section 860G(a)(3being serviced by the Servicer or one or more Subservicers according to Accepted Servicing Practices;
(v) Each Mortgage Note provides for (a) Monthly Payments which are at least equal to accrued interest during such Accrual Period and (b) at the maturity of the Code and no related Mortgage Loan, payment in full of the principal balance of such Mortgage Note;
(vi) The Mortgage Notes related to Mortgage Loans bear a variable Loan Rate and there is only one original of each such Mortgage Note;
(vii) Each Mortgage is a valid and subsisting first, second or third lien of record on the Mortgaged Property subject, in the case of any second or third Mortgage Loan, only to a Senior Lien or Senior Liens on such Mortgaged Property and subject in all cases to the exceptions to title set forth in the title insurance policy, if any, with respect to the related Mortgage Loan, which exceptions are generally acceptable to second mortgage lending companies (or first mortgage lending companies in the case of first lien Mortgage Loans), and such other exceptions to which similar properties are commonly subject and which do not individually, or in the aggregate, materially and adversely affect the benefits of the security intended to be provided by such Mortgage;
(viii) No Mortgage Note and related Mortgage has been assigned or pledged and immediately prior to the transfer and assignment contemplated in the Mortgage Loan Purchase Agreement, the Seller held good, marketable and indefeasible title to, and was the sole owner and holder of, each Mortgage Loan subject to no Liens (other than a loan-Senior Lien, if any); the Seller has full right and authority under all governmental and regulatory bodies having jurisdiction over the Seller, subject to no interest or participation of, or agreement with, any party, to sell and assign the same pursuant to the Mortgage Loan Purchase Agreement; and immediately upon the transfer and assignment therein contemplated, the Seller shall have transferred all of its right, title and interest in and to each Mortgage Loan to the Purchaser (or its assignee) and the Purchaser (or its assignee) will hold good, equitable, and when recorded, marketable title to-value ratio , and be the sole owner of, each Mortgage Loan subject to no Liens (calculated in accordance with other than a Senior Lien, if any); without limiting the REMIC Provisionsgenerality of the foregoing, the Seller has taken all steps necessary to effect the release of each Mortgage Loan from any lien thereon held by a Federal Home Loan Bank;
(ix) in excess To the best of 125%; the Seller's knowledge, none of the Mortgage Loans are either "consumer credit contracts" or "purchase money loans" as such terms are defined in 16 C.F.R. ss. 433; with respect is subject to each Mortgage Loan that is a "mortgage" as such term is defined in 15 U.S.C. 1602(aa), no obligor has or will have a claim or defense under such Mortgage Loanbankruptcy proceeding;
(vx) As of the Cut-off Closing Date, no Initial none of the Mortgage Loans was more than 30 days Delinquent;
(xi) No Mortgage Loan is subject to any right of rescission, set off, counterclaim or defense, including the defense of usury, nor will the operation of any of the terms of any Mortgage Note or Mortgage, or the exercise of any right thereunder, render either the Mortgage Note or the Mortgage unenforceable in whole or in part, or subject to any right of rescission, set off, counterclaim or defense, including the defense of usury, and no such right of rescission, set off, counterclaim or defense has been asserted with respect thereto;
(xii) To the best of the Seller's knowledge, there is no mechanics' lien or claim for work, labor or material affecting any Mortgaged Property which is or may be a Loanlien prior to, or equal or coordinate with, the lien of the related Mortgage, and no rights are outstanding that under law could give rise to such a lien except those which are insured against by the title insurance policy;
(a) Each Mortgage Loan at the time it was made complied with, and each Mortgage Loan at all times was serviced in compliance with, in each case, in all material respects, applicable state, local and federal laws and regulations, including, without limitation, usury, equal credit opportunity, consumer credit, applicable predatory and abusive lending laws, truth in lending and disclosure laws and (b) no Mortgage Loan is classified as (1) a "high cost" loan under the Home Ownership and Equity Protection Act of 1994 or (2) a "high cost," "threshold," "covered," "predatory" or similar loan under any other applicable state, federal or local law which applies to mortgage loans originated by a state-to-Value Ratio in excess of 100%; and Mortgage Loans representing not more thanchartered bank or any state or local law, rule or regulation applicable to the
Appears in 1 contract
Samples: Sale and Servicing Agreement (IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series 2006-H1)
Representations and Warranties of the Seller Regarding the Mortgage Loans. The Seller represents and warrants to the Trustee, the Depositor, the Servicer Trustee and the Certificateholders as of the Closing Date and, with respect to any Subsequent Mortgage Loan, as of the Subsequent Transfer Date (in either case except as otherwise expressly stated) that, as to each Mortgage Loan conveyed to the Trust by it:
(i) The information with respect to each Mortgage Loan set forth in the Mortgage Loan Schedule or Subsequent Mortgage Loan Schedule is true and correct as of the related Cut-off Date or related Subsequent Transfer Date;
(ii) All of the original or certified documentation set forth in Section 2.01 or Section 2.02, as applicable (including all material documents related thereto), with respect to each Mortgage Loan has been or will be delivered to the Trustee on the Closing Date or as otherwise provided in Section 2.01 or Section 2.02, as applicable;
(iii) Each The related Mortgaged Property is improved by a one- to four-family residential dwelling owned by the related Mortgagor in fee simple simple, which may include condominiums, townhouses and manufactured housing or modular homes that is are permanently affixed to the land and constitutes constitute real property under the laws of the state in which the Mortgaged Property is located but shall not include co-operatives or mobile homes;
(iv) Each Mortgage Loan is a "qualified mortgage" as defined in Section 860G(a)(3) of the Code and no such Mortgage Loan has a loan-to-value ratio (calculated in accordance with the REMIC Provisions) in excess of 125%; none of the Mortgage Loans are either "consumer credit contracts" or "purchase money loans" as such terms are defined in 16 C.F.R. ss. 433; with respect to each Mortgage Loan that is a "mortgage" as such term is defined in 15 U.S.C. 1602(aa), no obligor has or will have a claim or defense under such Mortgage Loan;
(v) As of the Cut-off Date or Subsequent Cut-off Date, as applicable, no Initial Mortgage Loan included in the Fixed Rate Group has a Combined Loan-to-Value Ratio in excess of 90% and no Mortgage Loan included in the Adjustable Rate Group has a Loan-to-Value Ratio in excess of 10090%; , except that one Mortgage Loan representing not more than 0.06% of the initial Fixed Rate Group Balance has a Combined Loan-to-Value Ratio of up to 95% and nine Mortgage Loans representing not more thanthan 0.46% of the initial Adjustable Rate Group Balance have Combined Loan-to-Value Ratios of up to 95%;
(v) Each Mortgage Loan was originated by an Affiliate of the Company or by an originator not affiliated with the Company authorized to originate such Mortgage Loan and is being serviced by the Company;
(vi) Each Mortgage Loan included in the Fixed Rate Group as of the Cut-off Date bears a fixed Mortgage Loan Rate of at least 7.00% per annum and each Mortgage Loan included in the Adjustable Rate Group as of the Cut-off Date is an Adjustable Rate Mortgage Loan that has a Minimum Rate of not less than 3.50% per annum and a Mortgage Loan Rate as of the Cut-off Date of not less than 5.00% per annum; each Subsequent Mortgage Loan included in the Fixed Rate Group will bear a fixed Mortgage Loan Rate of not less than 8.18% and each Subsequent Mortgage Loan included in the Adjustable Rate Group will have a Minimum Rate of not less than 5.50%; the terms of each Mortgage Loan or Subsequent Mortgage Loan included in the Adjustable Rate Group require that adjustments in the related 49 55 Mortgage Loan Rate be made employing the related Index measured as of a date not more than three months prior to the related adjustment date;
(vii) Each Mortgage Note provides for a schedule of substantially level and equal Monthly Mortgage Payments (subject, in the case of an Adjustable Rate Mortgage Loan, to periodic adjustments relating to changes in the Mortgage Loan Rate) that are sufficient to amortize fully the principal balance of such Mortgage Note on or before its maturity date, except that, Mortgage Notes with respect to Mortgage Loans in the Fixed Rate Group representing not more than 4.34% of the initial Fixed Rate Group Balance and Mortgage Notes with respect to Mortgage Loans in the Adjustable Rate Group representing not more than 0.10% of the initial Adjustable Rate Group Balance, provide for level and equal Monthly Mortgage Payments that are sufficient to amortize fully the principal balances of such Notes over a period not exceeding 30 years, with "balloon" payments at stated maturity that are substantially in excess of the Monthly Mortgage Payments;
(viii) Each Mortgage is a valid and subsisting lien of record on the Mortgaged Property having the priority indicated on the Mortgage Loan Schedule, subject, in the case of any Junior Mortgage Loan, only to any Senior Lien or Senior Liens on such Mortgaged Property and subject in all cases to the exceptions to title set forth in the title insurance policy with respect to the related Mortgage Loan, which exceptions are generally acceptable to home equity mortgage lending institutions, and such other exceptions to which similar properties are commonly subject and that do not individually, or in the aggregate, materially and adversely affect the benefits of the security intended to be provided by such Mortgage;
(ix) Immediately prior to the sale, transfer and assignment herein contemplated, the Company held good and indefeasible title to, and was the sole owner of, each Mortgage Loan conveyed by the Company subject to no liens, charges, mortgages, encumbrances or rights of others, except with respect to liens that will be released simultaneously with such transfer and assignment; and immediately upon the transfer and assignment herein contemplated, the Trustee will hold good and indefeasible title to, and be the sole owner of, each Mortgage Loan subject to no liens, charges, mortgages, encumbrances or rights of others;
(x) The Mortgage Loan Rate for each Adjustable Rate Mortgage Loan will be adjustable on each related Adjustment Date and will equal the sum, rounded upward to the nearest three decimal places, of the Index plus the related Gross Margin, subject to any related Minimum Rates, Maximum Rates or any limitations or periodic adjustments, in each case as specified in the related Mortgage Loan Schedule. No Adjustable Rate Mortgage Loan is subject to negative amortization. The Mortgage Notes relating to not more than 60% of the Mortgage Loans in the Adjustable Rate Group, by initial Adjustable Rate Group Balance or by the Adjustable Rate Group Balance as of the Closing Date, provide for initial Adjustment Dates that are more than one year and less than three years from the Cut-off Date;
(xi) With respect to any Adjustable Rate Mortgage Loan, no mortgage document in the Mortgage File contains any provision permitting or requiring conversion of the Mortgage Loan to a fixed interest rate nor is the Mortgage Loan Rate conditioned upon Mortgagor maintaining accounts with Seller;
(xii) As of the Cut-off Date (a) no Mortgage Loan had two or more Monthly Payments past due and not more than 6.20% of the Mortgage Loans (by Cut-off Date Principal Balance) had one or more Monthly Payments past due, (b) no Mortgage Loan has been 60 or more days contractually delinquent more than once during the 12-month period immediately preceding the Cut-off Date and (c) no Mortgage Loan has been 90 or more days delinquent in the 12 months preceding the Cut-off Date; as of the related Subsequent Cut-off Date, (a) no Subsequent Mortgage Loan will be more than 59 days contractually delinquent, (b) no Subsequent Mortgage Loan will have been 30 or more days contractually delinquent more than once during the preceding 12-month period and (c) no Subsequent Mortgage Loan will have been 90 or more days contractually delinquent during the preceding 12 month period;
(xiii) As of the Cut-off Date, there is no delinquent tax or assessment lien on any Mortgaged Property, and, to the best knowledge of the Company, each Mortgaged Property is free of substantial damage and is in good repair and is not affected by hazardous or toxic wastes or substances;
(xiv) There is no offset, right of rescission, counterclaim or defense, including the defense of usury, with respect to any Mortgage Note or Mortgage, nor will the operation of any of the terms of the Mortgage Note or the Mortgage, or the exercise of any right thereunder, render either the Mortgage Note or the Mortgage unenforceable in whole or in part, or subject to any right to rescission, set-off, counterclaim or defense, including the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto;
(xv) As of the Cut-off Date or Subsequent Cut-off Date, as applicable, there is no mechanic's lien or claim for work, labor or material affecting any Mortgaged Property that is or may be a lien prior to, or equal to or on a parity with, the lien of the related Mortgage except those that are insured against by any title insurance policy referred to in paragraph (xvii) below;
(xvi) To the best of the Seller's knowledge, each Mortgage Loan at the time it was made complied in all material respects with applicable local, state and federal laws and regulations, including, without limitation, the federal Truth-in-Lending Act and other consumer protection laws, real estate settlement procedure, usury, equal credit opportunity, disclosure and recording laws;
(xvii) With respect to each Mortgage Loan, a lender's title insurance policy (issued in standard form by a title insurance company authorized to transact business in the state where the related Mortgaged Property is located), in an amount at least equal to the Original 51 57 Principal Amount of such Mortgage Loan insuring the mortgagee's interest under the related Mortgage Loan as the holder of a valid lien of record on the real property described in the related Mortgage (subject only to exceptions of the character referred to in paragraph (viii) above), was effective on the date of the origination of such Mortgage Loan, and, as of the Closing Date or related Subsequent Transfer Date, as applicable, such policy is in full force and effect and thereafter such policy shall continue in full force and effect and shall inure to the benefit of the Certificateholders upon consummation of the transactions contemplated by this Agreement;
(xviii) As of the Cut-off Date or Subsequent Cut-off Date, as applicable, either (a) the improvements upon each Mortgaged Property are covered by a valid and existing hazard insurance policy (which may be a blanket policy) with a generally acceptable carrier that provides for fire and extended coverage representing coverage not less than the least of (a) the outstanding principal balance of the related Mortgage Loan (together, in the case of a Junior Mortgage Loan, with the outstanding principal balance of the Senior Lien), (b) the minimum amount required to compensate for damage or loss on a replacement cost basis or (c) the full insurable value of the Mortgaged Property or (b) in the case of a Junior Mortgage Loan, a policy has been issued by a generally acceptable carrier that will cover the full Principal Balance of such Junior Mortgage Loan in the event of a loss covered by a hazard typically insured against by the type of policy referred to in clause (xviii)(a);
(xix) If any Mortgaged Property is in an area identified in the Federal Register by FEMA as having special flood hazards, a flood insurance policy in a form meeting the requirements of the current guidelines of the Federal Insurance Administration, if obtainable with respect to such Mortgaged Property, is in effect with respect to such Mortgaged Property with a generally acceptable carrier in an amount representing coverage not less than the least of (A) the outstanding principal balance of the related Mortgage Loan (together, in the case of a Junior Mortgage Loan, with the outstanding principal balance of the Senior Lien), (B) the minimum amount required to compensate for damage or loss on a replacement cost basis or (C) the maximum amount of insurance that is available under the Flood Disaster Protection Act of 1973;
(xx) Each Mortgage and Mortgage Note is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and by general principles of equity (whether considered in a proceeding or action in equity or at law), and all parties to each Mortgage Loan had full legal capacity to execute all documents relating to such Mortgage Loan and convey the estate therein purported to be conveyed; with respect to each Mortgage Loan, only one original Mortgage Note exists;
(xxi) The Seller has caused and will cause to be performed any and all acts required to be performed to preserve the rights and remedies of the Trustee in any insurance policies applicable to each Mortgage Loan, including any necessary notifications of insurers, 52 58 assignments of policies or interests therein, and establishment of co-insured, joint loss payee and mortgagee rights in favor of the Trustee;
(xxii) As of the Cut-off Date no more than 0.52% of the initial Fixed Rate Group Balance is secured by Mortgaged Properties located within any single zip code area and no more than 0.45% of the initial Adjustable Rate Group Balance is secured by Mortgaged Properties located within any single zip code area;
(xxiii) Each original Mortgage has been recorded or is in the process of being recorded, and all subsequent assignments of the original Mortgage (other than the assignment from the Seller to the Trustee and any assignment to the Seller or an affiliate thereof) have been recorded in the appropriate jurisdictions as to which no Opinion of Counsel was delivered pursuant to Section 2.01 or 2.02, as applicable, or such Mortgages and assignments are in the process of being recorded);
(xxiv) The terms of each Mortgage Note and each Mortgage have not been impaired, altered or modified in any respect, except by a written instrument that has been recorded, if necessary, to protect the interest of the Certificateholders and that has been delivered to the Trustee. The substance of any such alteration or modification is reflected on the Mortgage Loan Schedule and has been approved by the primary mortgage guaranty insurer, if any;
(xxv) The proceeds of each Mortgage Loan have been fully disbursed, and there is no obligation on the part of the mortgagee to make future advances thereunder. Any and all requirements as to completion of any on-site or off-site improvements and as to disbursements of any escrow funds therefor have been complied with. All costs, fees and expenses incurred in making or closing or recording such Mortgage Loans were paid;
(xxvi) No Mortgage Note is or has been secured by any collateral, pledged account or other security other than the lien of the corresponding Mortgage;
(xxvii) No Mortgage Loan was originated under a buydown plan;
(xxviii) No Mortgage Loan has a shared appreciation feature or other contingent interest feature;
(xxix) Each Mortgaged Property consists of one or more contiguous parcels of real property with a residential dwelling erected thereon;
(xxx) Each Mortgage Loan contains a provision for the acceleration of the payment of the unpaid principal balance of such Mortgage Loan in the event the related Mortgaged Property is sold without the prior consent of the mortgagee thereunder;
(xxxi) Any advances made to the Mortgagor after the date of origination of a Mortgage Loan but prior to the Cut-off Date or related Subsequent Cut-off Date, as applicable, have been consolidated with the outstanding principal amount secured by the
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Aames Capital Corp)
Representations and Warranties of the Seller Regarding the Mortgage Loans. (a) The Seller represents and warrants to the TrusteeServicer, the Depositor, the Servicer Depositor and the Trustee on behalf of the Certificateholders as follows as of the Closing Date and, with respect to any Subsequent Mortgage Loan, as of the Subsequent Transfer Date (in either case except as otherwise expressly stated) that, as to each Mortgage Loan conveyed to the Trust by itDate:
(i) 1. The information with respect to each Mortgage Loan set forth in on the Mortgage Loan Schedule or Subsequent Mortgage Loan and the Prepayment Charge Schedule is complete, true and correct as of the related Cut-off Date or related Subsequent Transfer Datedates as of which the information therein is given;
2. The Mortgage Notes and the Mortgages have not been assigned or pledged by the Seller to any Person other than warehouse lenders, and immediately prior to the transactions herein contemplated, the Seller had good and marketable title thereto, and was the sole owner and holder of the Mortgage Loans free and clear of any and all liens, claims, encumbrances, participation interests, equities, pledges, charges or security interests of any nature (collectively, a "Lien"), other than any such Lien released simultaneously with the sale contemplated herein, and had full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same pursuant to this Agreement, and immediately upon the transfer and assignment of each Mortgage Loan as contemplated by this Agreement, the Trust will be the sole beneficial owner of, each Mortgage Loan free and clear of any lien, claim, participation interest, mortgage, security interest, pledge, charge or other encumbrance or other interest of any nature;
3. With respect to any Mortgage Loan that is not a Cooperative Loan, each Mortgage is a valid and existing lien on the property therein described, and each Mortgaged Property is free and clear of all encumbrances and liens having priority over the lien of the Mortgage, except (i) liens for real estate taxes and special assessments not yet due and payable, (ii) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal made in connection with the origination of the related Mortgage Loan, (iii) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by such Mortgage, (iv) in the case of a Mortgaged Property that is a condominium or an individual unit in a planned unit development, liens for common charges permitted by statute and (v) in the case of a Mortgage Loan secured by a second lien on the related Mortgaged Property, the related First Lien. Any security agreement, chattel mortgage or equivalent document related to the Mortgage and delivered to the Trustee or the Custodian on behalf of the Trustee establishes in the Seller a valid and subsisting lien on the property described therein, and the Seller has full right to sell and assign the same to the Trust;
4. The terms of each Mortgage Note and Mortgage have not been impaired, altered or modified in any respect, except by a written instrument which has been recorded, if necessary to protect the interests of the Trust, and which has been delivered to the Trustee or the Custodian on behalf of the Trustee. The substance of any such alteration or modification is reflected on the Mortgage Loan Schedule;
5. No instrument of release or waiver has been executed in connection with any Mortgage Loan, and no Mortgagor has been released, in whole or in part, except in connection with an assumption agreement which has been approved by the primary mortgage guaranty insurer, if any, and which has been delivered to the Trustee or the Custodian on behalf of the Trustee;
6. Except with respect to delinquencies described in clause (12) hereof, no Mortgagor is in default in complying with the terms of its Mortgage Note or Mortgage, and the Seller has not waived any default, breach, violation or event of acceleration except that the Seller may have accepted late payments, and all taxes, governmental assessments, insurance premiums or water, sewer and municipal charges which previously became due and owing have been paid, or an escrow of funds has been established in an amount sufficient to pay for every such item which remains unpaid and which has been assessed but is not yet due and payable. The Seller has not advanced funds or induced, solicited or knowingly received any advance of funds by a party other than the Mortgagor, directly or indirectly, for the payment of any amount required by the Mortgage, except for interest accruing from the date of the Mortgage Note or date of disbursement of the Mortgage proceeds, whichever is more recent, to the day which precedes by one (1) month the Due Date of the first installment of principal and interest;
7. There is no proceeding pending or threatened for the total or partial condemnation of any Mortgaged Property, nor is such a proceeding currently occurring, and such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or otherwise, so as to affect adversely the value of the Mortgaged Property as security for the Mortgage Loan or the use for which the premises were intended;
8. There are no mechanics' or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under law could give rise to such lien) affecting any Mortgaged Property which are, or may be, liens prior or equal to, or coordinate with, the lien of the Mortgage except those that are stated in the title insurance policy and for which related losses are affirmatively insured against by such policy;
9. All of the original improvements that were included for the purpose of determining the Appraised Value of each Mortgaged Property lie wholly within the boundaries and building restriction lines of such property, and no improvements on adjoining properties encroach upon the Mortgaged Property except those that are stated in the title insurance policy and for which related losses are affirmatively insured against by such policy;
10. No improvement located on or certified documentation set forth being part of any Mortgaged Property is in Section 2.01 (including violation of any applicable zoning law or regulation. All inspections, licenses and certificates required to be made or issued with respect to all material documents related thereto)occupied portions of the Mortgaged Property and, with respect to each Mortgage Loan has the use and occupancy of the same, including, but not limited to, certificates of occupancy and fire underwriting certificates, have been made or will be delivered to obtained from the Trustee on appropriate authorities and the Closing Date or as otherwise provided in Section 2.01 or Section 2.02, as applicable;
(iii) Each related Mortgaged Property is improved by a one- to four-family residential dwelling owned by lawfully occupied under applicable law;
11. All parties that have had any interest in any Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the related Mortgagor period in fee simple that is permanently affixed to which they held and disposed of such interest, were)
(1) in compliance with any and all licensing requirements of the land United States and constitutes real property under of the laws of the state in which wherein the Mortgaged Property is located but shall that are applicable to such parties and (2)(A) organized under the laws of such state or (B) qualified to do business in such state or exempt from such qualification in a manner so as not include co-operatives or mobile homes;
(iv) Each Mortgage Loan is a "qualified mortgage" as defined in Section 860G(a)(3) to affect adversely the enforceability of the Code and no such Mortgage Loan has a loan-to-value ratio or (calculated C) federal savings and loan associations or national banks having principal offices in accordance with such state or (D) not doing business in such state;
12. With respect to the REMIC ProvisionsMortgage Loans, (i) in excess all payments required to be made on each Mortgage Loan under the terms of 125%; none the related Mortgage Note have been made, except for approximately 0.59% of the Mortgage Loans (by Cut-Off Date Pool Principal Balance), which are either "consumer credit contracts" or "purchase money loans" as such terms are defined in 16 C.F.R. ss. 433; with respect up to each (but not exceeding) 59 days delinquent and (ii) no payment required to be made on any Mortgage Loan that is a "mortgage" as such term is defined in 15 U.S.C. 1602(aa), no obligor has or will have a claim or defense under such Mortgage Loan;
been more than 59 days delinquent more than once during the twelve (v12) As of month period immediately preceding the Cut-off Off Date;
13. Each of the documents and instruments included in a Mortgage File is duly executed and in due and proper form and each such document or instrument is in a form generally acceptable to prudent institutional mortgage lenders that regularly originate or purchase mortgage loans;
14. The Mortgage Notes and the related Mortgages are genuine, no Initial 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, receivership, moratorium or other similar laws relating to or affecting the rights of creditors 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 Loan has a Loan-to-Value Ratio in excess of 100%; 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 such parties. The Mortgagor is a natural person who is a party to the Mortgage Note and the Mortgage in an individual capacity, and not in the capacity of a trustee or otherwise;
15. Any and all requirements of any federal, state or local law, including, without limitation, usury, truth-in-lending, real estate settlement procedures, consumer credit protection, equal credit opportunity or disclosure laws, applicable to the origination and servicing of the Mortgage Loans representing not more thanor otherwise applicable to the Mortgage Loans have been complied with, and the Seller has and shall maintain in its possession, available for the Trustee's and the Certificate Insurer's inspection, and shall deliver to the Trustee or the Certificate Insurer, as applicable, upon demand, evidence of compliance with all such requirements;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Renaissance Home Equity Loan Asset-BKD Cert Series 2002-1)
Representations and Warranties of the Seller Regarding the Mortgage Loans. (a) The Seller represents and warrants to the Trustee, the Depositor, the Servicer and Trustee on behalf of the Certificateholders as follows as of the Closing Date and, with respect to any Subsequent Mortgage Loan, as of the Subsequent Transfer Date (in either case except as otherwise expressly stated) that, as to each Mortgage Loan conveyed to the Trust by itDate:
(i) 1. The information with respect to each Mortgage Loan set forth in on the Mortgage Loan Schedule or Subsequent relating to the Initial Mortgage Loans is complete, true and correct as of the Cut-Off Date and the information set forth on the Mortgage Loan Schedule relating to the Subsequent Mortgage Loans is complete, true and correct as of the related Cut-off Date or related Subsequent Transfer Off Date;
2. The Mortgage Notes and the Mortgages have not been assigned or pledged by the Seller to any Person other than warehouse lenders, and immediately prior to the transactions herein contemplated, the Seller had good and marketable title thereto, and was the sole owner and holder of the Mortgage Loans free and clear of any and all liens, claims, encumbrances, participation interests, equities, pledges, charges or security interests of any nature (collectively, a "Lien"), other than any such Lien released simultaneously with the sale contemplated herein, and had full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same pursuant to this Agreement, and immediately upon the transfer and assignment of each Mortgage Loan as contemplated by this Agreement, the Trust will be the sole beneficial owner of, each Mortgage Loan free and clear of any lien, claim, participation interest, mortgage, security interest, pledge, charge or other encumbrance or other interest of any nature;
3. With respect to any Mortgage Loan that is not a Cooperative Loan, each Mortgage is a valid and existing lien on the property therein described, and each Mortgaged Property is free and clear of all encumbrances and liens having priority over the lien of the Mortgage, except (i) liens for real estate taxes and special assessments not yet due and payable, (ii) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal made in connection with the origination of the related Mortgage Loan, (iii) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by such Mortgage; (iv) in the case of a Mortgaged Property that is a condominium or an individual unit in a planned unit development, liens for common charges permitted by statute and (v) in the case of a Mortgage Loan secured by a second lien on the related Mortgaged Property, the related First Lien. Any security agreement, chattel mortgage or equivalent document related to the Mortgage and delivered to the Trustee establishes in the Seller a valid and subsisting lien on the property described therein, and the Seller has full right to sell and assign the same to the Trust;
4. The terms of each Mortgage Note and Mortgage have not been impaired, altered or modified in any respect, except by a written instrument which has been recorded, if necessary to protect the interests of the Trust, and which has been delivered to the Trustee. The substance of any such alteration or modification is reflected on the Mortgage Loan Schedule;
5. No instrument of release or waiver has been executed in connection with any Mortgage Loan, and no Mortgagor has been released, in whole or in part, except in connection with an assumption agreement which has been approved by the primary mortgage guaranty insurer, if any, and which has been delivered to the Trustee;
6. Except with respect to delinquencies described in clause (12) hereof, no Mortgagor is in default in complying with the terms of its Mortgage Note or Mortgage, and the Seller has not waived any default, breach, violation or event of acceleration except that the Seller may have accepted late payments, and all taxes, governmental assessments, insurance premiums or water, sewer and municipal charges which previously became due and owing have been paid, or an escrow of funds has been established in an amount sufficient to pay for every such item which remains unpaid and which has been assessed but is not yet due and payable. The Seller has not advanced funds or induced, solicited or knowingly received any advance of funds by a party other than the Mortgagor, directly or indirectly, for the payment of any amount required by the Mortgage, except for interest accruing from the date of the Mortgage Note or date of disbursement of the Mortgage proceeds, whichever is more recent, to the day which precedes by one month the Due Date of the first installment of principal and interest;
7. There is no proceeding pending or threatened for the total or partial condemnation of any Mortgaged Property, nor is such a proceeding currently occurring, and such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or otherwise, so as to affect adversely the value of the Mortgaged Property as security for the Mortgage Loan or the use for which the premises were intended;
8. There are no mechanics' or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under law could give rise to such lien) affecting any Mortgaged Property which are, or may be, liens prior or equal to, or coordinate with, the lien of the Mortgage except those that are stated in the title insurance policy and for which related losses are affirmatively insured against by such policy;
9. All of the original improvements that were included for the purpose of determining the Appraised Value of each Mortgaged Property lie wholly within the boundaries and building restriction lines of such property, and no improvements on adjoining properties encroach upon the Mortgaged Property except those that are stated in the title insurance policy and for which related losses are affirmatively insured against by such policy;
10. No improvement located on or certified documentation set forth being part of any Mortgaged Property is in Section 2.01 (including violation of any applicable zoning law or regulation. All inspections, licenses and certificates required to be made or issued with respect to all material documents related thereto)occupied portions of the Mortgaged Property and, with respect to each Mortgage Loan has the use and occupancy of the same, including, but not limited to, certificates of occupancy and fire underwriting certificates, have been made or will be delivered to obtained from the Trustee on appropriate authorities and the Closing Date or as otherwise provided in Section 2.01 or Section 2.02, as applicable;
(iii) Each related Mortgaged Property is improved by a one- to four-family residential dwelling owned by lawfully occupied under applicable law;
11. All parties that have had any interest in any Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the related Mortgagor period in fee simple that is permanently affixed to which they held and disposed of such interest, were)
(1) in compliance with any and all licensing requirements of the land United States and constitutes real property under of the laws of the state in which wherein the Mortgaged Property is located but shall that are applicable to such parties and (2)(A) organized under the laws of such state or (B) qualified to do business in such state or exempt from such qualification in a manner so as not include co-operatives to affect adversely the enforceability of such Mortgage Loan or mobile homes(C) federal savings and loan associations or national banks having principal offices in such state or (D) not doing business in such state;
12. With respect to the Initial Mortgage Loans, as of the Cut-Off Date, (ivi) all payments required to be made on each Initial Mortgage Loan under the terms of the related Mortgage Note have been made except for 2.56% and 0.48% of the Initial Mortgage Loans in Loan Group 1 and Loan Group 2 respectively (by Cut-Off Date Loan Group Principal Balance) are up to 60 days Delinquent and (ii) no payment required to be made on any Initial Mortgage Loan has been more than 60 days Delinquent more than once during the twelve month period immediately preceding the Cut-Off Date;
13. Each of the documents and instruments included in a Mortgage File is duly executed and in due and proper form and each such document or instrument is in a form generally acceptable to prudent institutional mortgage lenders that regularly originate or purchase mortgage loans;
14. The Mortgage Notes and the related Mortgages 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, receivership, moratorium or other similar laws relating to or affecting the rights of creditors 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 such parties. The Mortgagor is a natural person who is a party to the Mortgage Note and the Mortgage in an individual capacity, and not in the capacity of a trustee or otherwise;
15. Any and all requirements of any federal, state or local law, including, without limitation, usury, truth-in- lending, real estate settlement procedures, consumer credit protection, equal credit opportunity or disclosure laws, applicable to the origination and servicing of the Mortgage Loans or otherwise applicable to the Mortgage Loans have been complied with, and the Seller has and shall maintain in its possession, available for the Trustee's inspection, and shall deliver to the Trustee upon demand, evidence of compliance with all such requirements;
16. The proceeds of the Mortgage Loans have been fully disbursed, there is no requirement for future advances thereunder and any and all requirements as to completion of any on-site or off-site improvements and as to disbursements of any escrow funds therefor have been complied with. All costs, fees and expenses incurred in making, closing or recording the Mortgage Loan have been paid; 17. Each Mortgage Loan is covered by an ALTA mortgage title insurance policy or such other form of policy acceptable to FNMA or FHLMC, issued by and constituting the valid and binding obligation of a "title insurer generally acceptable to prudent mortgage lenders that regularly originate or purchase mortgage loans comparable to the Mortgage Loans for sale to prudent investors in the secondary market that invest in mortgage loans such as the Mortgage Loans and qualified mortgage" to do business in the jurisdiction where the Mortgaged Property is located, insuring the Seller, its successors and assigns, as defined in Section 860G(a)(3) of to the Code and no such Mortgage Loan has a loan-to-value ratio (calculated in accordance with the REMIC Provisions) in excess of 125%; none first priority lien of the Mortgage Loans are either "consumer credit contracts" or "purchase money loans" as such terms are defined in 16 C.F.R. ss. 433; with respect to each the case of a Mortgage Loan that secured by a First Lien on the related Mortgaged Property and the second priority lien of the Mortgage in the case of a Mortgage Loan secured by a second lien on the related Mortgaged Property, in the original principal amount of the Mortgage Loan. The Seller is a "mortgage" the sole named insured of such mortgage title insurance policy, the assignment to the Purchaser or the Trustee as assignee of the Purchaser of the Seller's interest in such term mortgage title insurance policy does not require the consent of or notification to the insurer or the same has been obtained, and such mortgage title insurance policy is defined in 15 U.S.C. 1602(aa), no obligor has or full force and effect and will be in full force and effect and inure to the benefit of the Trustee upon the consummation of the transactions contemplated by this Agreement. No claims have a claim or defense been made under such Mortgage Loan;
(v) As mortgage title insurance policy and no prior holder of the Cut-off Daterelated Mortgage, no Initial Mortgage Loan including the Seller, has a Loan-to-Value Ratio in excess done, by act or omission, anything that would impair the coverage of 100%; and Mortgage Loans representing not more thansuch mortgage title insurance policy;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Delta Funding Corp /De/)
Representations and Warranties of the Seller Regarding the Mortgage Loans. (a) The Seller represents and warrants to the Trustee, the Depositor, the Servicer and Trustee on behalf of the Certificateholders as follows as of the Closing Date and, with respect to any Subsequent Mortgage Loan, as of the Subsequent Transfer Date (in either case except as otherwise expressly stated) that, as to each Mortgage Loan conveyed to the Trust by itDate:
(i) 1. The information with respect to each Mortgage Loan set forth in on the Mortgage Loan Schedule or Subsequent Mortgage Loan Schedule is complete, true and correct as of the related Cut-off Date or related Subsequent Transfer Datedates as of which the information therein is given;
2. The Mortgage Notes and the Mortgages have not been assigned or pledged by the Seller to any Person other than warehouse lenders, and immediately prior to the transactions herein contemplated, the Seller had good and marketable title thereto, and was the sole owner and holder of the Mortgage Loans free and clear of any and all liens, claims, encumbrances, participation interests, equities, pledges, charges or security interests of any nature (collectively, a "Lien"), other than any such Lien released simultaneously with the sale contemplated herein, and had full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same pursuant to this Agreement, and immediately upon the transfer and assignment of each Mortgage Loan as contemplated by this Agreement, the Trust will be the sole beneficial owner of, each Mortgage Loan free and clear of any lien, claim, participation interest, mortgage, security interest, pledge, charge or other encumbrance or other interest of any nature;
3. With respect to any Mortgage Loan that is not a Cooperative Loan, each Mortgage is a valid and existing lien on the property therein described, and each Mortgaged Property is free and clear of all encumbrances and liens having priority over the lien of the Mortgage, except (i) liens for real estate taxes and special assessments not yet due and payable, (ii) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal made in connection with the origination of the related Mortgage Loan, (iii) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by such Mortgage, (iv) in the case of a Mortgaged Property that is a condominium or an individual unit in a planned unit development, liens for common charges permitted by statute and (v) in the case of a Mortgage Loan secured by a second lien on the related Mortgaged Property, the related First Lien. Any security agreement, chattel mortgage or equivalent document related to the Mortgage and delivered to the Trustee or the Custodian on behalf of the Trustee establishes in the Seller a valid and subsisting lien on the property described therein, and the Seller has full right to sell and assign the same to the Trust;
4. The terms of each Mortgage Note and Mortgage have not been impaired, altered or modified in any respect, except by a written instrument which has been recorded, if necessary to protect the interests of the Trust, and which has been delivered to the Trustee or the Custodian on behalf of the Trustee. The substance of any such alteration or modification is reflected on the Mortgage Loan Schedule;
5. No instrument of release or waiver has been executed in connection with any Mortgage Loan, and no Mortgagor has been released, in whole or in part, except in connection with an assumption agreement which has been approved by the primary mortgage guaranty insurer, if any, and which has been delivered to the Trustee or the Custodian on behalf of the Trustee;
6. Except with respect to delinquencies described in clause (12) hereof, no Mortgagor is in default in complying with the terms of its Mortgage Note or Mortgage, and the Seller has not waived any default, breach, violation or event of acceleration except that the Seller may have accepted late payments, and all taxes, governmental assessments, insurance premiums or water, sewer and municipal charges which previously became due and owing have been paid, or an escrow of funds has been established in an amount sufficient to pay for every such item which remains unpaid and which has been assessed but is not yet due and payable. The Seller has not advanced funds or induced, solicited or knowingly received any advance of funds by a party other than the Mortgagor, directly or indirectly, for the payment of any amount required by the Mortgage, except for interest accruing from the date of the Mortgage Note or date of disbursement of the Mortgage proceeds, whichever is more recent, to the day which precedes by one month the Due Date of the first installment of principal and interest;
7. There is no proceeding pending or threatened for the total or partial condemnation of any Mortgaged Property, nor is such a proceeding currently occurring, and such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or otherwise, so as to affect adversely the value of the Mortgaged Property as security for the Mortgage Loan or the use for which the premises were intended;
8. There are no mechanics' or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under law could give rise to such lien) affecting any Mortgaged Property which are, or may be, liens prior or equal to, or coordinate with, the lien of the Mortgage except those that are stated in the title insurance policy and for which related losses are affirmatively insured against by such policy;
9. All of the original improvements that were included for the purpose of determining the Appraised Value of each Mortgaged Property lie wholly within the boundaries and building restriction lines of such property, and no improvements on adjoining properties encroach upon the Mortgaged Property except those that are stated in the title insurance policy and for which related losses are affirmatively insured against by such policy;
10. No improvement located on or certified documentation set forth being part of any Mortgaged Property is in Section 2.01 (including violation of any applicable zoning law or regulation. All inspections, licenses and certificates required to be made or issued with respect to all material documents related thereto)occupied portions of the Mortgaged Property and, with respect to each Mortgage Loan has the use and occupancy of the same, including, but not limited to, certificates of occupancy and fire underwriting certificates, have been made or will be delivered to obtained from the Trustee on appropriate authorities and the Closing Date or as otherwise provided in Section 2.01 or Section 2.02, as applicable;
(iii) Each related Mortgaged Property is improved by a one- to four-family residential dwelling owned by lawfully occupied under applicable law;
11. All parties that have had any interest in any Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the related Mortgagor period in fee simple that is permanently affixed to which they held and disposed of such interest, were)
(1) in compliance with any and all licensing requirements of the land United States and constitutes real property under of the laws of the state in which wherein the Mortgaged Property is located but shall that are applicable to such parties and (2)(A) organized under the laws of such state or (B) qualified to do business in such state or exempt from such qualification in a manner so as not include co-operatives or mobile homes;
(iv) Each Mortgage Loan is a "qualified mortgage" as defined in Section 860G(a)(3) to affect adversely the enforceability of the Code and no such Mortgage Loan or (C) federal savings and loan associations or national banks having principal offices in such state or (D) not doing business in such state;
12. With respect to the Initial Mortgage Loans, as of the Cut-Off Date, (i) all payments required to be made on each Initial Mortgage Loan under the terms of the related Mortgage Note have been made except for approximately 1.28% and 1.51% of the Initial Mortgage Loans in Loan Group F and Loan Group A respectively (by Cut-Off Date Principal Balance) are up to 59 days delinquent and (ii) no payment required to be made on any Initial Mortgage Loan has been more than 59 days delinquent more than once during the twelve month period immediately preceding the Cut-Off Date;
13. Each of the documents and instruments included in a loan-to-value ratio (calculated Mortgage File is duly executed and in due and proper form and each such document or instrument is in a form generally acceptable to prudent institutional mortgage lenders that regularly originate or purchase mortgage loans;
14. The Mortgage Notes and the related Mortgages 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, receivership, moratorium or other similar laws relating to or affecting the REMIC Provisions) rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in excess 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 such parties. The Mortgagor is a natural person who is a party to the Mortgage Note and the Mortgage in an individual capacity, and not in the capacity of 125%; none a trustee or otherwise;
15. Any and all requirements of any federal, state or local law, including, without limitation, usury, truth-in-lending, real estate settlement procedures, consumer credit protection, equal credit opportunity or disclosure laws, applicable to the origination and servicing of the Mortgage Loans are either "consumer credit contracts" or "purchase money loans" as such terms are defined in 16 C.F.R. ss. 433; with respect otherwise applicable to each Mortgage Loan that is a "mortgage" as such term is defined in 15 U.S.C. 1602(aa), no obligor has or will have a claim or defense under such Mortgage Loan;
(v) As of the Cut-off Date, no Initial Mortgage Loan has a Loan-to-Value Ratio in excess of 100%; and Mortgage Loans representing not more thanhave been complied with, and the Seller has and shall maintain in its possession, available for the Trustee's and the Certificate Insurer's inspection, and shall deliver to the Trustee or the Certificate Insurer, as applicable, upon demand, evidence of compliance with all such requirements;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Delta Funding Corp /De/)
Representations and Warranties of the Seller Regarding the Mortgage Loans. (a) The Seller hereby represents and warrants to the Trust, Indenture Trustee, on behalf of the Depositor, the Servicer Class A Noteholders and the Certificateholders Insurer as follows as of the Closing Date andDate, with respect to any Subsequent Mortgage Loan, as of the Subsequent Transfer Date (in either case except as unless otherwise expressly stated) that, as to each Mortgage Loan conveyed to the Trust by itspecifically set forth herein:
(i) The information with respect to each Mortgage Loan set forth in the Mortgage Loan Schedule or Subsequent Mortgage Loan Schedule is complete, true and correct in all material respects as of the related Cut-off Date or related Subsequent Transfer Off Date;
(ii) All As of the original or certified documentation set forth in Section 2.01 (including all material documents related thereto)Closing Date, with respect to for each Mortgage Loan has been or will Loan, the related Mortgage File contains each of the documents and instruments specified to be delivered to the Trustee on the Closing Date or as otherwise provided in Section 2.01 or Section 2.02, as applicableincluded therein;
(iii) Each related Mortgaged Property is improved by a one- to four-family residential dwelling owned by the related Mortgagor in fee simple that is permanently affixed to the land dwelling, which does not include cooperatives or mobile homes and constitutes does not constitute other than real property under the laws of the state in which the Mortgaged Property is located but shall not include co-operatives or mobile homeslaw;
(iv) Each Mortgage Loan is being serviced by the Servicer or one or more Subservicers;
(v) Each Mortgage Loan is a [closed-end] [revolving] home equity loan and all amounts due under the related Mortgage Note have been advanced. Each Mortgage Note provides for Monthly Payments which, if timely paid on the Due Date therefor, are sufficient to fully amortize the principal balance of such Mortgage Note on or before its maturity date;
(vi) The Mortgage Note related to each Mortgage Loan bears a [fixed] [variable] Loan Rate and there is only one original of each Mortgage Note;
(vii) [Reserved]
(viii) Each Mortgage is a valid and subsisting first, second or third lien of record on the Mortgaged Property subject, in the case of any second or third Mortgage Loan, only to a First Lien or to a First Lien and a Second Lien respectively on such Mortgaged Property and subject in all cases to the exceptions to title set forth in the title insurance policy with respect to the related Mortgage Loan, which exceptions are generally acceptable to second mortgage lending companies, and such other exceptions to which similar properties are commonly subject and which do not individually, or in the aggregate, materially and adversely affect the benefits of the security intended to be provided by such Mortgage;
(ix) Except with respect to liens released immediately prior to the transfer herein contemplated, each Mortgage Note and related Mortgage have not been assigned or pledged and immediately prior to the transfer and assignment herein contemplated, the Seller held good, marketable and indefeasible title to, and was the sole owner and holder of, each Mortgage Loan subject to no liens, charges, mortgages, claims, participation interests, equities, pledges or security interests of any nature, encumbrances or rights of others (collectively, a "qualified mortgage" as defined Lien"); the Seller has full right and authority under all governmental and regulatory bodies having jurisdiction over the Seller, subject to no interest or participation of, or agreement with, any party, to sell and assign the same pursuant to this Agreement; and immediately upon the transfer and assignment herein contemplated, the Seller shall have transferred all of its right, title and interest in Section 860G(a)(3) of the Code and no such to each Mortgage Loan has a loan-to the Purchaser (or its assignee) and the Purchaser (or its assignee) will hold good, and equitable title, to-value ratio , and be the sole owner of, each Mortgage Loan subject to no Liens;
(calculated in accordance with the REMIC Provisionsx) in excess of 125%; none None of the Mortgage Loans was or more days delinquent as of the Cut-Off Date;
(xi) [Reserved]
(xii) No Mortgage Loan is subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, nor will the operation of any of the terms of any Mortgage Note or Mortgage, or the exercise of any right thereunder, render either the Mortgage Note or the Mortgage unenforceable in whole or in part, or subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto;
(xiii) There is no mechanics' lien or claim for work, labor or material affecting any Mortgaged Property which is or may be a lien prior to, or equal or coordinate with, the lien of the related Mortgage, and no rights are either "outstanding that under law could give rise to such a lien except those which are insured against by the title insurance policy referred to in paragraph (xv) below;
(xiv) Each Mortgage Loan at the time it was made complied with, and each Mortgage Loan at all times was serviced in compliance with, in each case, in all material respects, applicable state and federal laws and regulations, including, without limitation, usury, equal credit opportunity, consumer credit contracts" or "purchase money loans" as such terms are defined in 16 C.F.R. ss. 433; with credit, truth-in-lending and disclosure laws;
(xv) With respect to each Mortgage Loan, either (a) a lender's title insurance policy, issued in standard American Land Title Association or California Land Title Association form, or other form acceptable in a particular jurisdiction, by a title insurance company authorized to transact business in the state in which the related Mortgaged Property is situated, together with a condominium endorsement, if applicable, in an amount at least equal to the original principal balance of such Mortgage Loan that is insuring the Seller and its successor's and assignees' interest under the related Mortgage Loan as the holder of a "mortgage" as valid first or second mortgage lien of record on the real property described in the Mortgage, subject only to the exceptions of the character referred to in paragraph (viii) above, was valid and in full force and effect on the date of the origination of such term is defined Mortgage Loan or (b) an attorney's opinion of title was prepared in 15 U.S.C. 1602(aa), no obligor has or will have a claim or defense under connection with the origination of such Mortgage Loan;
(vxvi) As The improvements upon each Mortgaged Property are covered by a valid and existing hazard insurance policy with a generally acceptable carrier that provides for fire and extended coverage representing coverage described in Sections 3.04 and 3.05;
(xvii) A flood insurance policy is in effect with respect to each Mortgaged Property with a generally acceptable carrier in an amount representing coverage described in Sections 3.04 or 3.05, if and to the extent required by Sections 3.04 or 3.05; (xviii) Each Mortgage and Mortgage Note is the legal, valid and binding obligation of the Cut-off Daterelated Mortgagor and is enforceable in accordance with its terms, no Initial except only as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and by general principles of equity (whether considered in a proceeding or action in equity or at law), and all parties to each Mortgage Loan has and the Mortgagee had full legal capacity to execute all Mortgage Loan documents and to convey the estate therein purported to be conveyed. The Mortgagor is a Loan-to-Value Ratio natural person who is a party to the Mortgage Note and the Mortgage in excess an individual capacity, and not in the capacity of 100%; and Mortgage Loans representing not more thana trustee or otherwise;
Appears in 1 contract
Samples: Sale and Servicing Agreement (Bond Securitization LLC)
Representations and Warranties of the Seller Regarding the Mortgage Loans. The Seller represents and warrants to the Trustee, the Depositor, the Servicer Certificate Insurer and the Certificateholders as of the Closing Date and, with respect to any Subsequent Mortgage Loan, as of the Subsequent Transfer Date (in either case except as otherwise expressly stated) that, as to each Mortgage Loan conveyed to the Trust by it:
(i) The information with respect to each Mortgage Loan set forth in the Mortgage Loan Schedule or Subsequent Mortgage Loan Schedule is true and correct as of the related Cut-off Date or related Subsequent Transfer Date;
(ii) All of the original or certified documentation set forth in Section 2.01 or Section 2.02, as applicable (including all material documents related thereto), with respect to each Mortgage Loan has been or will be delivered to the Trustee on the Closing Date or as otherwise provided in Section 2.01 or Section 2.02, as applicable;
(iii) Each The related Mortgaged Property is improved by a one- to four-family residential dwelling owned by the related Mortgagor in fee simple simple, which may include condominiums, townhouses and manufactured housing or modular homes that is are permanently affixed to the land and constitutes constitute real property under the laws of the state in which the Mortgaged Property is located but shall not include co-operatives or mobile homes;
(iv) Each Mortgage Loan is a "qualified mortgage" as defined in Section 860G(a)(3) of the Code and ad no such Mortgage Loan has a combined-loan-to-value ratio (calculated in accordance with the REMIC Provisions) in excess of 125%; none of the Mortgage Loans are either "consumer credit contracts" or "purchase money loans" as such terms are defined in 16 C.F.R. ss. Section 433; with respect to each Mortgage Loan that is a "mortgage" as such term is defined in 15 U.S.C. 1602(aa), no obligor has or will have a claim or defense under such Mortgage Loan;
(v) As Each Mortgage Loan was originated by an Affiliate of the Cut-off Date, no Initial Company or an by an originator not affiliated with the Company authorized to originate such Mortgage Loan has and is being serviced by the Company;
(vi) Each Mortgage Loan bears a Loan-to-Value Ratio in excess fixed Mortgage Loan Rate of 100at least 7.00% per annum; Each Subsequent Mortgage Loan will bear a fixed Mortgage Loan Rate of not less than 8.35%; ;
(vii) Each Mortgage Note provides for a schedule of substantially level and equal Monthly Mortgage Loans representing not more thanPayments that are sufficient to amortize fully the principal balance of such Mortgage Note on or before its maturity date, except that, Mortgage Notes with
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Aames Capital Corp)
Representations and Warranties of the Seller Regarding the Mortgage Loans. (a) The Seller represents and warrants to the Trustee, the Depositor, the Servicer and the Trustee on behalf of the Certificateholders as follows as of the Closing Date and, with respect to any Subsequent Mortgage Loan, as of the Subsequent Transfer Date (in either case except as otherwise expressly stated) that, as to each Mortgage Loan conveyed to the Trust by itDate:
(i) 1. The information with respect to each Mortgage Loan set forth in on the Mortgage Loan Schedule or Subsequent Mortgage Loan Schedule is complete, true and correct as of the related Cut-off Date or related Subsequent Transfer Datedates as of which the information therein is given;
2. The Mortgage Notes and the Mortgages have not been assigned or pledged by the Seller to any Person other than warehouse lenders, and immediately prior to the transactions herein contemplated, the Seller had good and marketable title thereto, and was the sole owner and holder of the Mortgage Loans free and clear of any and all liens, claims, encumbrances, participation interests, equities, pledges, charges or security interests of any nature (collectively, a "Lien"), other than any such Lien released simultaneously with the sale contemplated herein, and had full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same pursuant to this Agreement, and immediately upon the transfer and assignment of each Mortgage Loan as contemplated by this Agreement, the Trust will be the sole beneficial owner of, each Mortgage Loan free and clear of any lien, claim, participation interest, mortgage, security interest, pledge, charge or other encumbrance or other interest of any nature;
3. With respect to any Mortgage Loan that is not a Cooperative Loan, each Mortgage is a valid and existing lien on the property therein described, and each Mortgaged Property is free and clear of all encumbrances and liens having priority over the lien of the Mortgage, except (i) liens for real estate taxes and special assessments not yet due and payable, (ii) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal made in connection with the origination of the related Mortgage Loan, (iii) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by such Mortgage, (iv) in the case of a Mortgaged Property that is a condominium or an individual unit in a planned unit development, liens for common charges permitted by statute and (v) in the case of a Mortgage Loan secured by a second lien on the related Mortgaged Property, the related First Lien. Any security agreement, chattel mortgage or equivalent document related to the Mortgage and delivered to the Trustee or the Custodian on behalf of the Trustee establishes in the Seller a valid and subsisting lien on the property described therein, and the Seller has full right to sell and assign the same to the Trust;
4. The terms of each Mortgage Note and Mortgage have not been impaired, altered or modified in any respect, except by a written instrument which has been recorded, if necessary to protect the interests of the Trust, and which has been delivered to the Trustee or the Custodian on behalf of the Trustee. The substance of any such alteration or modification is reflected on the Mortgage Loan Schedule;
5. No instrument of release or waiver has been executed in connection with any Mortgage Loan, and no Mortgagor has been released, in whole or in part, except in connection with an assumption agreement which has been approved by the primary mortgage guaranty insurer, if any, and which has been delivered to the Trustee or the Custodian on behalf of the Trustee;
6. Except with respect to delinquencies described in clause (12) hereof, no Mortgagor is in default in complying with the terms of its Mortgage Note or Mortgage, and the Seller has not waived any default, breach, violation or event of acceleration except that the Seller may have accepted late payments, and all taxes, governmental assessments, insurance premiums or water, sewer and municipal charges which previously became due and owing have been paid, or an escrow of funds has been established in an amount sufficient to pay for every such item which remains unpaid and which has been assessed but is not yet due and payable. The Seller has not advanced funds or induced, solicited or knowingly received any advance of funds by a party other than the Mortgagor, directly or indirectly, for the payment of any amount required by the Mortgage, except for interest accruing from the date of the Mortgage Note or date of disbursement of the Mortgage proceeds, whichever is more recent, to the day which precedes by one month the Due Date of the first installment of principal and interest;
7. There is no proceeding pending or threatened for the total or partial condemnation of any Mortgaged Property, nor is such a proceeding currently occurring, and such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or otherwise, so as to affect adversely the value of the Mortgaged Property as security for the Mortgage Loan or the use for which the premises were intended;
8. There are no mechanics' or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under law could give rise to such lien) affecting any Mortgaged Property which are, or may be, liens prior or equal to, or coordinate with, the lien of the Mortgage except those that are stated in the title insurance policy and for which related losses are affirmatively insured against by such policy;
9. All of the original improvements that were included for the purpose of determining the Appraised Value of each Mortgaged Property lie wholly within the boundaries and building restriction lines of such property, and no improvements on adjoining properties encroach upon the Mortgaged Property except those that are stated in the title insurance policy and for which related losses are affirmatively insured against by such policy;
10. No improvement located on or certified documentation set forth being part of any Mortgaged Property is in Section 2.01 (including violation of any applicable zoning law or regulation. All inspections, licenses and certificates required to be made or issued with respect to all material documents related thereto)occupied portions of the Mortgaged Property and, with respect to each Mortgage Loan has the use and occupancy of the same, including, but not limited to, certificates of occupancy and fire underwriting certificates, have been made or will be delivered to obtained from the Trustee on appropriate authorities and the Closing Date or as otherwise provided in Section 2.01 or Section 2.02, as applicable;
(iii) Each related Mortgaged Property is improved by a one- to four-family residential dwelling owned by lawfully occupied under applicable law;
11. All parties that have had any interest in any Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the related Mortgagor period in fee simple that is permanently affixed to which they held and disposed of such interest, were)
(1) in compliance with any and all licensing requirements of the land United States and constitutes real property under of the laws of the state in which wherein the Mortgaged Property is located but shall that are applicable to such parties and (2)(A) organized under the laws of such state or (B) qualified to do business in such state or exempt from such qualification in a manner so as not include co-operatives or mobile homes;
(iv) Each Mortgage Loan is a "qualified mortgage" as defined in Section 860G(a)(3) to affect adversely the enforceability of the Code and no such Mortgage Loan or (C) federal savings and loan associations or national banks having principal offices in such state or (D) not doing business in such state;
12. With respect to the Initial Mortgage Loans, as of May 1, 2001, (i) all payments required to be made on each Initial Mortgage Loan under the terms of the related Mortgage Note have been made, except for approximately 1.32% of the Initial Mortgage Loans (by Principal Balance as of May 1, 2001) which are up to 59 days delinquent and (ii) no payment required to be made on any Initial Mortgage Loan has been more than 59 days delinquent more than once during the twelve month period immediately preceding May 1, 2001;
13. Each of the documents and instruments included in a loan-to-value ratio (calculated Mortgage File is duly executed and in due and proper form and each such document or instrument is in a form generally acceptable to prudent institutional mortgage lenders that regularly originate or purchase mortgage loans;
14. The Mortgage Notes and the related Mortgages 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, receivership, moratorium or other similar laws relating to or affecting the REMIC Provisions) rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in excess 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 such parties. The Mortgagor is a natural person who is a party to the Mortgage Note and the Mortgage in an individual capacity, and not in the capacity of 125%; none a trustee or otherwise;
15. Any and all requirements of any federal, state or local law, including, without limitation, usury, truth-in-lending, real estate settlement procedures, consumer credit protection, equal credit opportunity or disclosure laws, applicable to the origination and servicing of the Mortgage Loans are either "consumer credit contracts" or "purchase money loans" as such terms are defined in 16 C.F.R. ss. 433; with respect otherwise applicable to each Mortgage Loan that is a "mortgage" as such term is defined in 15 U.S.C. 1602(aa), no obligor has or will have a claim or defense under such Mortgage Loan;
(v) As of the Cut-off Date, no Initial Mortgage Loan has a Loan-to-Value Ratio in excess of 100%; and Mortgage Loans representing not more thanhave been complied with, and the Seller has and shall maintain in its possession, available for the Trustee's and the Certificate Insurer's inspection, and shall deliver to the Trustee or the Certificate Insurer, as applicable, upon demand, evidence of compliance with all such requirements;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Delta Funding Corp /De/)
Representations and Warranties of the Seller Regarding the Mortgage Loans. (a) The Seller represents and warrants to the Trustee, the Depositor, the Servicer and the Trustee on behalf of the Certificateholders as follows as of the Closing Date and, with respect to any Subsequent Mortgage Loan, as of the Subsequent Transfer Date (in either case except as otherwise expressly stated) that, as to each Mortgage Loan conveyed to the Trust by itDate:
(i) 1. The information with respect to each Mortgage Loan set forth in on the Mortgage Loan Schedule or Subsequent Mortgage Loan Schedule is complete, true and correct as of the related Cut-off Date or related Subsequent Transfer Datedates as of which the information therein is given;
2. The Mortgage Notes and the Mortgages have not been assigned or pledged by the Seller to any Person other than warehouse lenders, and immediately prior to the transactions herein contemplated, the Seller had good and marketable title thereto, and was the sole owner and holder of the Mortgage Loans free and clear of any and all liens, claims, encumbrances, participation interests, equities, pledges, charges or security interests of any nature (collectively, a "Lien"), other than any such Lien released simultaneously with the sale contemplated herein, and had full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same pursuant to this Agreement, and immediately upon the transfer and assignment of each Mortgage Loan as contemplated by this Agreement, the Trust will be the sole beneficial owner of, each Mortgage Loan free and clear of any lien, claim, participation interest, mortgage, security interest, pledge, charge or other encumbrance or other interest of any nature;
3. With respect to any Mortgage Loan that is not a Cooperative Loan, each Mortgage is a valid and existing lien on the property therein described, and each Mortgaged Property is free and clear of all encumbrances and liens having priority over the lien of the Mortgage, except (i) liens for real estate taxes and special assessments not yet due and payable, (ii) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal made in connection with the origination of the related Mortgage Loan, (iii) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by such Mortgage, (iv) in the case of a Mortgaged Property that is a condominium or an individual unit in a planned unit development, liens for common charges permitted by statute and (v) in the case of a Mortgage Loan secured by a second lien on the related Mortgaged Property, the related First Lien. Any security agreement, chattel mortgage or equivalent document related to the Mortgage and delivered to the Trustee or the Custodian on behalf of the Trustee establishes in the Seller a valid and subsisting lien on the property described therein, and the Seller has full right to sell and assign the same to the Trust;
4. The terms of each Mortgage Note and Mortgage have not been impaired, altered or modified in any respect, except by a written instrument which has been recorded, if necessary to protect the interests of the Trust, and which has been delivered to the Trustee or the Custodian on behalf of the Trustee. The substance of any such alteration or modification is reflected on the Mortgage Loan Schedule;
5. No instrument of release or waiver has been executed in connection with any Mortgage Loan, and no Mortgagor has been released, in whole or in part, except in connection with an assumption agreement which has been approved by the primary mortgage guaranty insurer, if any, and which has been delivered to the Trustee or the Custodian on behalf of the Trustee;
6. Except with respect to delinquencies described in clause (12) hereof, no Mortgagor is in default in complying with the terms of its Mortgage Note or Mortgage, and the Seller has not waived any default, breach, violation or event of acceleration except that the Seller may have accepted late payments, and all taxes, governmental assessments, insurance premiums or water, sewer and municipal charges which previously became due and owing have been paid, or an escrow of funds has been established in an amount sufficient to pay for every such item which remains unpaid and which has been assessed but is not yet due and payable. The Seller has not advanced funds or induced, solicited or knowingly received any advance of funds by a party other than the Mortgagor, directly or indirectly, for the payment of any amount required by the Mortgage, except for interest accruing from the date of the Mortgage Note or date of disbursement of the Mortgage proceeds, whichever is more recent, to the day which precedes by one month the Due Date of the first installment of principal and interest;
7. There is no proceeding pending or threatened for the total or partial condemnation of any Mortgaged Property, nor is such a proceeding currently occurring, and such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or otherwise, so as to affect adversely the value of the Mortgaged Property as security for the Mortgage Loan or the use for which the premises were intended;
8. There are no mechanics' or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under law could give rise to such lien) affecting any Mortgaged Property which are, or may be, liens prior or equal to, or coordinate with, the lien of the Mortgage except those that are stated in the title insurance policy and for which related losses are affirmatively insured against by such policy;
9. All of the original improvements that were included for the purpose of determining the Appraised Value of each Mortgaged Property lie wholly within the boundaries and building restriction lines of such property, and no improvements on adjoining properties encroach upon the Mortgaged Property except those that are stated in the title insurance policy and for which related losses are affirmatively insured against by such policy;
10. No improvement located on or certified documentation set forth being part of any Mortgaged Property is in Section 2.01 (including violation of any applicable zoning law or regulation. All inspections, licenses and certificates required to be made or issued with respect to all material documents related thereto)occupied portions of the Mortgaged Property and, with respect to each Mortgage Loan has the use and occupancy of the same, including, but not limited to, certificates of occupancy and fire underwriting certificates, have been made or will be delivered to obtained from the Trustee on appropriate authorities and the Closing Date or as otherwise provided in Section 2.01 or Section 2.02, as applicable;
(iii) Each related Mortgaged Property is improved by a one- to four-family residential dwelling owned by lawfully occupied under applicable law;
11. All parties that have had any interest in any Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the related Mortgagor period in fee simple that is permanently affixed to which they held and disposed of such interest, were)
(1) in compliance with any and all licensing requirements of the land United States and constitutes real property under of the laws of the state in which wherein the Mortgaged Property is located but shall that are applicable to such parties and (2)(A) organized under the laws of such state or (B) qualified to do business in such state or exempt from such qualification in a manner so as not include co-operatives or mobile homes;
(iv) Each Mortgage Loan is a "qualified mortgage" as defined in Section 860G(a)(3) to affect adversely the enforceability of the Code and no such Mortgage Loan or (C) federal savings and loan associations or national banks having principal offices in such state or (D) not doing business in such state;
12. With respect to the Initial Mortgage Loans, as of September 1, 2001, (i) all payments required to be made on each Initial Mortgage Loan under the terms of the related Mortgage Note have been made, except for approximately 0.95% of the Initial Mortgage Loans (by Principal Balance as of September 1, 2001) which are up to 59 days delinquent and (ii) no payment required to be made on any Initial Mortgage Loan has been more than 59 days delinquent more than once during the twelve month period immediately preceding September 1, 2001;
13. Each of the documents and instruments included in a loan-to-value ratio (calculated Mortgage File is duly executed and in due and proper form and each such document or instrument is in a form generally acceptable to prudent institutional mortgage lenders that regularly originate or purchase mortgage loans;
14. The Mortgage Notes and the related Mortgages 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, receivership, moratorium or other similar laws relating to or affecting the REMIC Provisions) rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in excess 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 such parties. The Mortgagor is a natural person who is a party to the Mortgage Note and the Mortgage in an individual capacity, and not in the capacity of 125%; none a trustee or otherwise;
15. Any and all requirements of any federal, state or local law, including, without limitation, usury, truth-in-lending, real estate settlement procedures, consumer credit protection, equal credit opportunity or disclosure laws, applicable to the origination and servicing of the Mortgage Loans are either "consumer credit contracts" or "purchase money loans" as such terms are defined in 16 C.F.R. ss. 433; with respect otherwise applicable to each Mortgage Loan that is a "mortgage" as such term is defined in 15 U.S.C. 1602(aa), no obligor has or will have a claim or defense under such Mortgage Loan;
(v) As of the Cut-off Date, no Initial Mortgage Loan has a Loan-to-Value Ratio in excess of 100%; and Mortgage Loans representing not more thanhave been complied with, and the Seller has and shall maintain in its possession, available for the Trustee's and the Certificate Insurer's inspection, and shall deliver to the Trustee or the Certificate Insurer, as applicable, upon demand, evidence of compliance with all such requirements;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Delta Funding Corp /De/)
Representations and Warranties of the Seller Regarding the Mortgage Loans. (a) The Seller represents and warrants to the Trustee, the Depositor, the Servicer and the Trustee on behalf of the Certificateholders as follows as of the Closing Date and, with respect to any Subsequent Mortgage Loan, as of the Subsequent Transfer Date (in either case except as otherwise expressly stated) that, as to each Mortgage Loan conveyed to the Trust by itDate:
(i) 1. The information with respect to each Mortgage Loan set forth in on each of the Mortgage Loan Schedule or Subsequent Mortgage Loan and the Prepayment Charge Schedule is complete, true and correct as of the related Cut-off Date or related Subsequent Transfer Datedates as of which the information therein is given;
2. The Mortgage Notes and the Mortgages have not been assigned or pledged by the Seller to any Person other than warehouse lenders, and immediately prior to the transactions herein contemplated, the Seller had good and marketable title thereto, and was the sole owner and holder of the Mortgage Loans free and clear of any and all liens, claims, encumbrances, participation interests, equities, pledges, charges or security interests of any nature (collectively, a "Lien"), other than any such Lien released simultaneously with the sale contemplated herein, and had full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same pursuant to this Agreement, and immediately upon the transfer and assignment of each Mortgage Loan as contemplated by this Agreement, the Trust will be the sole beneficial owner of, each Mortgage Loan free and clear of any lien, claim, participation interest, mortgage, security interest, pledge, charge or other encumbrance or other interest of any nature;
3. With respect to any Mortgage Loan that is not a Cooperative Loan, each Mortgage is a valid and existing lien on the property therein described, and each Mortgaged Property is free and clear of all encumbrances and liens having priority over the lien of the Mortgage, except (i) liens for real estate taxes and special assessments not yet due and payable, (ii) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected in the appraisal made in connection with the origination of the related Mortgage Loan, (iii) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by such Mortgage, (iv) in the case of a Mortgaged Property that is a condominium or an individual unit in a planned unit development, liens for common charges permitted by statute and (v) in the case of a Mortgage Loan secured by a second lien on the related Mortgaged Property, the related First Lien. Any security agreement, chattel mortgage or equivalent document related to the Mortgage and delivered to the Trustee or the Custodian on behalf of the Trustee establishes in the Seller a valid and subsisting lien on the property described therein, and the Seller has full right to sell and assign the same to the Trust;
4. The terms of each Mortgage Note and Mortgage have not been impaired, altered or modified in any respect, except by a written instrument which has been recorded, if necessary to protect the interests of the Trust, and which has been delivered to the Trustee or the Custodian on behalf of the Trustee. The substance of any such alteration or modification is reflected on the Mortgage Loan Schedule;
5. No instrument of release or waiver has been executed in connection with any Mortgage Loan, and no Mortgagor has been released, in whole or in part, except in connection with an assumption agreement which has been approved by the primary mortgage guaranty insurer, if any, and which has been delivered to the Trustee or the Custodian on behalf of the Trustee;
6. Except with respect to delinquencies described in clause (12) hereof, no Mortgagor is in default in complying with the terms of its Mortgage Note or Mortgage, and the Seller has not waived any default, breach, violation or event of acceleration except that the Seller may have accepted late payments, and all taxes, governmental assessments, insurance premiums or water, sewer and municipal charges which previously became due and owing have been paid, or an escrow of funds has been established in an amount sufficient to pay for every such item which remains unpaid and which has been assessed but is not yet due and payable. The Seller has not advanced funds or induced, solicited or knowingly received any advance of funds by a party other than the Mortgagor, directly or indirectly, for the payment of any amount required by the Mortgage, except for interest accruing from the date of the Mortgage Note or date of disbursement of the Mortgage proceeds, whichever is more recent, to the day which precedes by one month the Due Date of the first installment of principal and interest;
7. There is no proceeding pending or threatened for the total or partial condemnation of any Mortgaged Property, nor is such a proceeding currently occurring, and such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or otherwise, so as to affect adversely the value of the Mortgaged Property as security for the Mortgage Loan or the use for which the premises were intended;
8. There are no mechanics' or similar liens or claims which have been filed for work, labor or material (and no rights are outstanding that under law could give rise to such lien) affecting any Mortgaged Property which are, or may be, liens prior or equal to, or coordinate with, the lien of the Mortgage except those that are stated in the title insurance policy and for which related losses are affirmatively insured against by such policy;
9. All of the original improvements that were included for the purpose of determining the Appraised Value of each Mortgaged Property lie wholly within the boundaries and building restriction lines of such property, and no improvements on adjoining properties encroach upon the Mortgaged Property except those that are stated in the title insurance policy and for which related losses are affirmatively insured against by such policy;
10. No improvement located on or certified documentation set forth being part of any Mortgaged Property is in Section 2.01 (including violation of any applicable zoning law or regulation. All inspections, licenses and certificates required to be made or issued with respect to all material documents related thereto)occupied portions of the Mortgaged Property and, with respect to each Mortgage Loan has the use and occupancy of the same, including, but not limited to, certificates of occupancy and fire underwriting certificates, have been made or will be delivered to obtained from the Trustee on appropriate authorities and the Closing Date or as otherwise provided in Section 2.01 or Section 2.02, as applicable;
(iii) Each related Mortgaged Property is improved by a one- to four-family residential dwelling owned by lawfully occupied under applicable law;
11. All parties that have had any interest in any Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the related Mortgagor period in fee simple that is permanently affixed to which they held and disposed of such interest, were)
(1) in compliance with any and all licensing requirements of the land United States and constitutes real property under of the laws of the state in which wherein the Mortgaged Property is located but shall that are applicable to such parties and (2)(A) organized under the laws of such state or (B) qualified to do business in such state or exempt from such qualification in a manner so as not include co-operatives or mobile homes;
(iv) Each Mortgage Loan is a "qualified mortgage" as defined in Section 860G(a)(3) to affect adversely the enforceability of the Code and no such Mortgage Loan or (C) federal savings and loan associations or national banks having principal offices in such state or (D) not doing business in such state;
12. With respect to the Initial Mortgage Loans, as of November 30, 2000, (i) all payments required to be made on each Initial Mortgage Loan under the terms of the related Mortgage Note have been made, except for approximately 1.90% of the Initial Mortgage Loans (by Principal Balance as of November 30, 2000) which are up to 59 days delinquent and (ii) no payment required to be made on any Initial Mortgage Loan has been more than 59 days delinquent more than once during the twelve month period immediately preceding November 30, 2000;
13. Each of the documents and instruments included in a loan-to-value ratio (calculated Mortgage File is duly executed and in due and proper form and each such document or instrument is in a form generally acceptable to prudent institutional mortgage lenders that regularly originate or purchase mortgage loans;
14. The Mortgage Notes and the related Mortgages 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, receivership, moratorium or other similar laws relating to or affecting the REMIC Provisions) rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in excess 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 such parties. The Mortgagor is a natural person who is a party to the Mortgage Note and the Mortgage in an individual capacity, and not in the capacity of 125%; none a trustee or otherwise;
15. Any and all requirements of any federal, state or local law, including, without limitation, usury, truth-in-lending, real estate settlement procedures, consumer credit protection, equal credit opportunity or disclosure laws, applicable to the origination and servicing of the Mortgage Loans are either "consumer credit contracts" or "purchase money loans" as such terms are defined in 16 C.F.R. ss. 433; with respect otherwise applicable to each Mortgage Loan that is a "mortgage" as such term is defined in 15 U.S.C. 1602(aa), no obligor has or will have a claim or defense under such Mortgage Loan;
(v) As of the Cut-off Date, no Initial Mortgage Loan has a Loan-to-Value Ratio in excess of 100%; and Mortgage Loans representing not more thanhave been complied with, and the Seller has and shall maintain in its possession, available for the Trustee's and the Certificate Insurer's inspection, and shall deliver to the Trustee or the Certificate Insurer, as applicable, upon demand, evidence of compliance with all such requirements;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Delta Funding Home Equity Loan Trust 2000-4)
Representations and Warranties of the Seller Regarding the Mortgage Loans. The Seller represents and warrants to the Trustee, the Depositor, the Servicer Trustee and the Certificateholders as of the Closing Date and, with respect to any Subsequent Mortgage Loan, as of the Subsequent Transfer Date (in either case except as otherwise expressly stated) that), that as to each Mortgage Loan conveyed to the Trust by it:
(i) The information with respect to each Mortgage Loan set forth in the Mortgage Loan Schedule or Subsequent Mortgage Loan Schedule is true and correct as of the related Cut-off Date or related Subsequent Transfer Date;
(ii) All of the original or certified documentation set forth in Section 2.01 (including all material documents related thereto), with respect to each Mortgage Loan has 55 61 been or will be delivered to the Trustee on the Closing Date or as otherwise provided in Section 2.01 or Section 2.02, as applicable;
(iii) Each Except with respect to one Mortgaged Property comprised of vacant land securing a Mortgage Loan with a Principal Balance as of the Cut-off Date of not more than $[ ], each related Mortgaged Property is improved by a one- to four-family residential dwelling owned by the related Mortgagor in fee simple simple, which may include condominiums, townhouses and manufactured housing or modular homes that is are permanently affixed to the land and constitutes constitute real property under the laws of the state in which the Mortgaged Property is located but shall not include co-operatives or mobile homes;
(iv) Each Mortgage Loan is a "qualified mortgage" as defined in Section 860G(a)(3) of the Code and no such Mortgage Loan has a loan-to-value ratio (calculated in accordance with the REMIC Provisions) in excess of 125%; none of the Mortgage Loans are either "consumer credit contracts" or "purchase money loans" as such terms are defined in 16 C.F.R. ss. 433; with respect to each Mortgage Loan that is a "mortgage" as such term is defined in 15 U.S.C. 1602(aa), no obligor has or will have a claim or defense under such Mortgage Loan;
(v) As of the Cut-off Date or Subsequent Cut-off Date, as appropriate, no Initial Mortgage Loan included in the Fixed Rate Group has a Combined Loan-to-Value Ratio in excess of [ ]% and no Mortgage Loan included in the Adjustable Rate Group has a Loan-to-Value Ratio in excess of 100[ ]%; and , except that two Mortgage Loans representing not more thanthan [ ]% of the initial Fixed Rate Group Balance have Combined Loan-to-Value Ratios of up to [ ]%, and four Mortgage Loans representing not more than [ ]%, of the Original Adjustable Rate Group Balance have Combined Loan-to-Value Ratios of up to [ ]%;
(v) Each Mortgage Loan was originated by an Affiliate of the Company or by an originator not affiliated with the Company authorized to originate such Mortgage Loan and is being serviced by the Company;
(vi) Each Mortgage Loan included in the Fixed Rate Group as of the Cut-off Date bears a fixed Mortgage Loan Rate of at least [ ]% per annum and each Mortgage Loan included in the Adjustable Rate Group as of the Cut-off Date is an Adjustable Rate Mortgage Loan that has a Minimum Rate of not less than [ ]% per annum and a Mortgage Loan Rate as of the Cut-off Date of not less than [ ]% per annum; the terms of each Mortgage Loan included in the Adjustable Rate Group require that adjustments in the related Mortgage Loan Rate be made employing the related Index measured as of a date not more than three months prior to the related adjustment date;
(vii) Each Mortgage Note provides for a schedule of substantially level and equal Monthly Mortgage Payments (subject, in the case of an Adjustable Rate Mortgage Loan, to periodic adjustments relating to changes in the Mortgage Loan Rate) that are sufficient to amortize fully the principal balance of such Mortgage Note on or before its maturity date, except that, Mortgage Notes with respect to Mortgage Loans in the Fixed Rate Group representing not more than [ ]% of the initial Fixed Rate Group Balance, provide for level and equal Monthly Mortgage Payments that are sufficient to amortize fully the principal balances of such Notes over a period not exceeding [ ] years, with "balloon" payments at stated maturity that are substantially in excess of the Monthly Mortgage Payments;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Aames Capital Acceptance Corp)
Representations and Warranties of the Seller Regarding the Mortgage Loans. (a) The Seller hereby represents and warrants to the TrusteeDepositor and the Insurer, and the Depositor hereby assigns its rights with respect to such representations and warranties to the Trust, the Depositor, Indenture Trustee on behalf of the Servicer Noteholders and the Certificateholders and the Insurer as follows as of the Closing Date andDate, and with respect to any Subsequent each Eligible Substitute Mortgage Loan, as of the Subsequent Transfer Date date of such substitution (in either case except as otherwise expressly stated) that, as to each Mortgage Loan conveyed and to the Trust by it:extent expressly stated therein as of such other time):
(i) The information with respect to each Mortgage Loan set forth in the Mortgage Loan Schedule or Subsequent Mortgage Loan Schedule is complete, true and correct in all material respects as of the related Cut-off Date or related Subsequent Transfer Closing Date;
(ii) All As of the original or certified documentation set forth Closing Date, for each Mortgage Loan, the related Mortgage File contains the documents and instruments referred to in Section 2.01 (including all material documents related thereto2.01(e)(ii), with respect to each Mortgage Loan has been or will be delivered to the Trustee on the Closing Date or as otherwise provided in Section 2.01 or Section 2.02, as applicable;
(iii) Each related Mortgaged Property relating to a Mortgage Loan is improved by a one- to four-family residential dwelling owned by the related Mortgagor in fee simple that is permanently affixed to the land dwelling, which does not include cooperatives or mobile homes and constitutes does not constitute other than real property under the laws of the state in which the Mortgaged Property is located but shall not include co-operatives or mobile homeslaw;
(iv) Each Mortgage Loan is a "qualified mortgage" as defined in Section 860G(a)(3being serviced by the Servicer or one or more Subservicers according to Accepted Servicing Practices;
(v) Each Mortgage Note provides for (a) Monthly Payments which are at least equal to accrued interest during such Accrual Period and (b) at the maturity of the Code and no related Mortgage Loan, payment in full of the principal balance of such Mortgage Note;
(vi) The Mortgage Notes related to Mortgage Loans bear a variable Loan Rate and there is only one original of each such Mortgage Note;
(vii) Each Mortgage is a valid and subsisting first or second lien of record on the Mortgaged Property subject, in the case of any second Mortgage Loan, only to a Senior Lien or Senior Liens on such Mortgaged Property and subject in all cases to the exceptions to title set forth in the title insurance policy, if any, with respect to the related Mortgage Loan, which exceptions are generally acceptable to second mortgage lending companies (or first mortgage lending companies in the case of first lien Mortgage Loans), and such other exceptions to which similar properties are commonly subject and which do not individually, or in the aggregate, materially and adversely affect the benefits of the security intended to be provided by such Mortgage;
(viii) No Mortgage Note and related Mortgage has been assigned or pledged and immediately prior to the transfer and assignment contemplated in the Mortgage Loan Purchase Agreement, the Seller held good, marketable and indefeasible title to, and was the sole owner and holder of, each Mortgage Loan subject to no Liens; the Seller has full right and authority under all governmental and regulatory bodies having jurisdiction over the Seller, subject to no interest or participation of, or agreement with, any party, to sell and assign the same pursuant to the Mortgage Loan Purchase Agreement; and immediately upon the transfer and assignment therein contemplated, the Seller shall have transferred all of its right, title and interest in and to each Mortgage Loan to the Purchaser (or its assignee) and the Purchaser (or its assignee) will hold good, equitable, and when recorded, marketable title to, and be the sole owner of, each Mortgage Loan subject to no Liens; without limiting the generality of the foregoing, the Seller has taken all steps necessary to effect the release of each Mortgage Loan from any lien thereon held by a loan-to-value ratio Federal Home Loan Bank;
(calculated in accordance with the REMIC Provisionsix) in excess of 125%; none None of the Mortgage Loans are either "consumer credit contracts" or "purchase money loans" as such terms are defined in 16 C.F.R. ss. 433; with respect is subject to each Mortgage Loan that is a "mortgage" as such term is defined in 15 U.S.C. 1602(aa), no obligor has or will have a claim or defense under such Mortgage Loanbankruptcy proceeding;
(vx) As of the Cut-off Date, none of the Mortgage Loans was more than 30 days Delinquent;
(xi) No Mortgage Loan is subject to any right of rescission, set off, counterclaim or defense, including the defense of usury, nor will the operation of any of the terms of any Mortgage Note or Mortgage, or the exercise of any right thereunder, render either the Mortgage Note or the Mortgage unenforceable in whole or in part, or subject to any right of rescission, set off, counterclaim or defense, including the defense of usury, and no Initial such right of rescission, set off, counterclaim or defense has been asserted with respect thereto;
(xii) There is no mechanics’ lien or claim for work, labor or material affecting any Mortgaged Property which is or may be a lien prior to, or equal or coordinate with, the lien of the related Mortgage, and no rights are outstanding that under law could give rise to such a lien except those which are insured against by the title insurance policy;
(a) Each Mortgage Loan at the time it was made complied with, and each Mortgage Loan at all times was serviced in compliance with, in each case, in all material respects, applicable state, local and federal laws and regulations, including, without limitation, usury, equal credit opportunity, consumer credit, applicable predatory and abusive lending laws, truth in lending and disclosure laws and (b) no Mortgage Loan is classified as (1) a “high cost” loan under the Home Ownership and Equity Protection Act of 1994 or (2) a “high cost,” “threshold,” “covered,” “predatory” or similar loan under any other applicable state, federal or local law which applies to mortgage loans originated by a state-chartered bank or any state or local law, rule or regulation applicable to the Mortgage Loans (or a similar classified loan using different terminology under a law imposing heightened regulatory scrutiny or additional legal liability for residential mortgage loans having high interest rates, points and/or fees);
(a) No Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable (as such terms are defined in Standard & Poor’s LEVELS® Version 5.7 Glossary Revised, Appendix E), (b) no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act and (c) no Mortgage Loan originated in the State of Illinois is governed by the Illinois Interest Act (815 ILCS 205);
(xv) The improvements upon each Mortgaged Property relating to Mortgage Loans are covered by a valid and existing hazard insurance policy with a generally acceptable carrier that provides for fire and extended coverage representing coverage described in Sections 3.04 and 3.05;
(xvi) A flood insurance policy is in effect with respect to each Mortgaged Property with a generally acceptable carrier in an amount representing coverage described in Sections 3.04 or 3.05, if and to the extent required by Sections 3.04 or 3.05;
(xvii) Each Mortgage and Mortgage Note is the legal, valid and binding obligation of the related Mortgagor and is enforceable in accordance with its terms, except only as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity (whether considered in a proceeding or action in equity or at law), and all parties to each Mortgage Loan and the Mortgagee had full legal capacity to execute all Mortgage Loan documents and to convey the estate therein purported to be conveyed. To the best of the Seller’s knowledge, there was no fraud involved in the origination of any Mortgage Loan by the mortgagee or by the Mortgagor, any appraiser or any other party involved in the origination of the Mortgage Loan; 44
(xviii) As of the Closing Date, approximately 92.95% of the Mortgage Loans (measured by the Cut-off Date Pool Balance) are secured by Mortgaged Properties that are owner-occupied residences, based on representations by the related Mortgagors made by such Mortgagors at origination.
(xix) The terms of the Mortgage Note and the Mortgage have not been impaired, altered or modified in any material respect, except by a written instrument which has been recorded or is in the process of being recorded and which has been or will be held by the Seller or delivered to the Indenture Trustee in accordance with the provisions of this Agreement. The substance of any such alteration or modification is reflected on the related Mortgage Loan Schedule and was approved, if required, by the related primary mortgage guaranty insurer, if any. Each original Mortgage was recorded, and all subsequent assignments of the original Mortgage have been recorded in the appropriate jurisdictions wherein such recordation is necessary to perfect the lien thereof as against creditors of the Seller, or are in the process of being recorded;
(xx) As of the Closing Date, no Mortgage has been satisfied, cancelled or subordinated, in whole, or rescinded, and no instrument of release or waiver has been executed in connection with any Mortgage Loan, and no Mortgage has been released in whole or in part, in either case, that would have a material adverse affect on the related Mortgage Loan;
(xxi) There is no proceeding pending or threatened for the total or partial condemnation of any Mortgaged Property, nor is such a proceeding currently occurring, and as of the Cut-off Date and the Closing Date, each Mortgaged Property is in good repair and is free of damage by waste, fire, earthquake or earth movement, flood, tornado, hurricane or other casualty that would affect adversely the value of the Mortgaged Property as security for the related Mortgage Loan or the use for which the premises were intended;
(xxii) All of the improvements which were included for the purpose of determining the Appraised Value of the Mortgaged Property lie wholly within the boundaries and building restriction lines of such property, and no improvements on adjoining properties encroach upon the Mortgaged Property;
(xxiii) No improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation and all inspections, licenses and certificates required to be made or issued with respect to all occupied portions of the Mortgaged Property, including but not limited to certificates of occupancy and fire underwriting certificates, have been made or obtained from the appropriate authorities;
(xxiv) All costs, fees and expenses incurred in making or closing or recording the Mortgage Loans were paid, and no Mortgagor is entitled to any refund of any such amount paid or due under the related Mortgage or Mortgage Note;
(xxv) No Mortgage Note is or was secured by any collateral, pledged account or other security except the lien of the corresponding Mortgage;
(xxvi) There is no obligation on the part of the Seller or any other party to make payments in addition to those made by the Mortgagor;
(xxvii) With respect to each Mortgage constituting a deed of trust, a trustee, duly qualified under applicable law to serve as such, has been properly designated and currently so serves and is named in such Mortgage, and no fees or expenses are or will become payable by the Trust, the Indenture Trustee or the Noteholders to the Indenture Trustee under the deed of trust, except in connection with a trustee’s sale after default by the Mortgagor;
(xxviii) No Mortgage Loan has a Loanshared appreciation feature, or other contingent interest feature;
(xxix) There is no delinquent tax or assessment lien or judgment on any Mortgaged Property;
(xxx) Each Mortgage contains customary and enforceable provisions which, subject to clause (xvii) above, render the rights and remedies of the holder thereof adequate for the realization against the related Mortgaged Property of the benefits of the security, including (A) in the case of a Mortgage designated as a deed of trust, by trustee’s sale and (B) otherwise by judicial or non-tojudicial foreclosure, as applicable in the relevant jurisdiction;
(xxxi) Each Mortergage contains a customary provision for the acceleration of the payment of the unpaid principal balance of the Mortgage Loan in the event the related security for the Mortgage Loan is sold without the prior consent of the mortgagee thereunder;
(xxxii) Except as set forth in clause (x) above, there is no default, breach, violation or event of acceleration existing under any 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 Seller has not waived any default, breach, violation or event of accelation;
(xxxiii) 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 such parties;
(xxxiv) All of the Mortgage Loans were originated in all material respects in accordance with the applicable Originator’s underwriting criteria in effect at the time of origination;
(xxxv) The Mortgage Loans were not selected by the Seller for inclusion in the Trust on any basis intended to adversely affect the Trust, the Noteholders the Certificateholders or the Insurer; and each Mortgage Note and Mortgage is in substantially one of the forms attached as Exhibit E and Exhibit F;
(xxxvi) As of the Cut-off Date, approximately 1.08% of the Mortgage Loans (measured by the Cut-off Date Pool Balance) were secured by Mortgaged Properties that had a Combined Loan to Value Ratio in excess of more than 100%;
(xxxvii) Each Mortgage Loan was originated by the Originator listed on the Mortgage Loan Schedule and was acquired in the ordinary course of business by the Seller;
(xxxviii) As of the Closing Date, the Seller has not received a notice of default of a Senior Lien which has not been cured;
(xxxix) Each of the documents and instruments included in a Mortgage File referred to in Section 2.01(e)(ii)(A) and (C) through (D) is, and at such time as Assignments of Mortgage are required to have been prepared, such Assignments of Mortgage will have been, duly executed and in due and proper form and each such document or instrument is or will be in a form generally acceptable to prudent institutional mortgage lenders that regularly originate or purchase mortgage loans similar to the Mortgage Loans;
(xl) The Conveyed Assets constitute either “instruments” or “general intangibles” within the meaning of the New York UCC;
(xli) All consents and approvals required by the terms of each Mortgage Loan to the sale of such Mortgage Loan to the Purchaser under the Mortgage Loan Purchase Agreement have been obtained; (xlii) Other than the security interest granted by the Seller to the Purchaser pursuant to the Mortgage Loan Purchase Agreement and other than any security interest which shall have been released immediately prior to the consummation of the transactions contemplated hereby, the Seller has not pledged, assigned, released, sold, granted a security interest in, or otherwise conveyed any of the Mortgage Loans. The Seller has not authorized the filing of and is not aware of any financing statements against the Seller that include a description of collateral covering the Mortgage Loans representing other than any financing statement relating to the security interest granted to the Purchaser under the Mortgage Loan Purchase Agreement. The Seller is not more thanaware of any judgment or tax lien filings against the Seller;
Appears in 1 contract
Samples: Sale and Servicing Agreement (IndyMac Home Equity Mortgage Loan Asset-Backed Trust, Series 2006-H4)
Representations and Warranties of the Seller Regarding the Mortgage Loans. The Seller represents and warrants to the Trustee, the Depositor, the Servicer Certificate Insurer and the Certificateholders as of the Closing Date and, with respect to any Subsequent Mortgage Loan, as of the Subsequent Transfer Date (in either case except as otherwise expressly stated) that, as to each Mortgage Loan conveyed to the Trust by it:
(i) The information with respect to each Mortgage Loan set forth in the Mortgage Loan Schedule or Subsequent Mortgage Loan Schedule is true and correct as of the related Cut-off Date or related Subsequent Transfer Date;
(ii) All of the original or certified documentation set forth in Section 2.01 or Section 2.02, as applicable (including all material documents related thereto), with respect to each Mortgage Loan has been or will be delivered to the Trustee on the Closing Date or as otherwise provided in Section 2.01 or Section 2.02, as applicable;
(iii) Each The related Mortgaged Property is improved by a one- to four-family residential dwelling owned by the related Mortgagor in fee simple simple, which may include condominiums, townhouses and modular homes that is are permanently affixed to the land and constitutes constitute real property under the laws of the state in which the Mortgaged Property is located but shall not include co-operatives operatives, manufactured housing units or mobile homes;
(iv) Each Mortgage Loan is a "qualified mortgage" as defined in Section 860G(a)(3) of the Code and no such Mortgage Loan has a loan-to-value ratio (calculated in accordance with the REMIC Provisions) in excess of 125%; none of the Mortgage Loans are either "consumer credit contracts" or "purchase money loans" as such terms are defined in 16 C.F.R. ss. 433; with respect to each Mortgage Loan that is a "mortgage" as such term is defined in 15 U.S.C. 1602(aa), no obligor has or will have a claim or defense under such Mortgage Loan;
(v) As of the Cut-off Date or Subsequent Cut-off Date, as applicable, no Initial Mortgage Loan included in Group I has a Combined Loan-to-Value Ratio in excess of 85% and no Mortgage Loan included in Group II has a Loan-to-Value Ratio in excess of 10090%; ;
(v) Each Mortgage Loan was originated by an Affiliate of the Company or an by an originator not affiliated with the Company authorized to originate such Mortgage Loan and is being serviced by the Company;
(vi) Each Mortgage Loan included in Group I as of the Cut-off Date bears a fixed Mortgage Loan Rate of at least 8.20% per annum and each Mortgage Loan included in Group II as of the Cut-off Date is an Adjustable Rate Mortgage Loan that has a Minimum Rate of not less than 4.99% per annum and a Mortgage Loan Rate as of the Cut-off Date of not less than 4.99% per annum;
(vii) Each Mortgage Note provides for a schedule of substantially level and equal Monthly Mortgage Payments (subject, in the case of an Adjustable Rate Mortgage Loan, to periodic adjustments relating to changes in the Mortgage Loan Rate) that are sufficient to amortize fully the principal balance of such Mortgage Note on or before its maturity date, except that, Mortgage Notes with respect to Mortgage Loans in Group I representing not more than 5.95% of the Original Group I Balance and Mortgage Notes with respect to Mortgage Loans in Group II representing not more than 0.047% of the Original Group II Balance, provide for level and equal Monthly Mortgage Payments that are sufficient to amortize fully the principal balances of such Notes over a period not exceeding 30 years, with "balloon" payments at stated maturity that are substantially in excess of the Monthly Mortgage Payments;
(viii) Each Mortgage is a valid and subsisting lien of record on the Mortgaged Property having the priority indicated on the Mortgage Loan Schedule, subject, in the case of any Junior Mortgage Loan, only to any Senior Lien or Senior Liens on such Mortgaged Property and subject in all cases to the exceptions to title set forth in the title insurance policy with respect to the related Mortgage Loan, which exceptions are generally acceptable to home equity mortgage lending institutions, and such other exceptions to which similar properties are commonly subject and that do not individually, or in the aggregate, materially and adversely affect the benefits of the security intended to be provided by such Mortgage;
(ix) Immediately prior to the sale, transfer and assignment herein contemplated, the Company held good and indefeasible title to, and was the sole owner of, each Mortgage Loan conveyed by the Company subject to no liens, charges, mortgages, encumbrances or rights of others, except with respect to liens that will be released simultaneously with such transfer and assignment; and immediately upon the transfer and assignment herein contemplated, the Trustee will hold good and indefeasible title to, and be the sole owner of, each Mortgage Loan subject to no liens, charges, mortgages, encumbrances or rights of others;
(x) The Mortgage Loan Rate for each Adjustable Rate Mortgage Loan will be adjustable on each related Adjustment Date and will equal the sum, rounded upward to the nearest three decimal places, of the Index plus the related Gross Margin, subject to any related Minimum Rates, Maximum Rates or any limitations or periodic adjustments, in each case as specified in the related Mortgage Loan Schedule. No Adjustable Rate Mortgage Loan is subject to negative amortization. The Mortgage Notes relating to not more than 47% of the Mortgage Loans in Group II, by Original Group II Balance or by Group II Balance as of the Closing Date, provide for initial Adjustment Dates that are more than one year and less than five years from the Cut-off Date;
(xi) With respect to any Adjustable Rate Mortgage Loan, no mortgage document in the Mortgage File contains any provision permitting or requiring conversion of the Mortgage Loan to a fixed interest rate nor is the Mortgage Loan Rate conditioned upon Mortgagor maintaining accounts with Seller;
(xii) As of the Cut-off Date (a) no Mortgage Loan had three or more Monthly Payments past due, not more than 2.64% of the Mortgage Loans (by Cut-off Date Principal Balance) had two or more Monthly Payments past due and not more than 22.74% of the Mortgage Loans (by Cut-off Date Principal Balance) had one or more Monthly Payments past due, (b) no Mortgage Loan has been 60 or more days contractually delinquent more than once during the 12-month period immediately preceding the Cut-off Date and (c) no Mortgage Loan has been 90 or more days delinquent in the 12 months preceding the Cut-off Date; as of the related Subsequent Cut-off Date, no Subsequent Mortgage Loan will have been 30 or more days contractually delinquent, (b) no Subsequent Mortgage Loan will have been 30 or more days contractually delinquent more than once during the preceding 12-month period and (c) no Subsequent Mortgage Loan will have been 90 or more days contractually delinquent in the 12 months preceding such Subsequent Cut-off Date;
(xiii) As of the Cut-off Date, there is no delinquent tax or assessment lien on any Mortgaged Property, and, to the best knowledge of the Company, each Mortgaged Property is free of substantial damage and is in good repair and is not affected by hazardous or toxic wastes or substances;
(xiv) There is no offset, right of rescission, counterclaim or defense, including the defense of usury, with respect to any Mortgage Note or Mortgage, nor will the operation of any of the terms of the Mortgage Note or the Mortgage, or the exercise of any right 50 56 thereunder, render either the Mortgage Note or the Mortgage unenforceable in whole or in part, or subject to any right to rescission, set-off, counterclaim or defense, including the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto;
(xv) As of the Cut-off Date or Subsequent Cut-off Date, as applicable, there is no mechanic's lien or claim for work, labor or material affecting any Mortgaged Property that is or may be a lien prior to, or equal to or on a parity with, the lien of the related Mortgage except those that are insured against by any title insurance policy referred to in paragraph (xvii) below;
(xvi) Each Mortgage Loan at the time it was made complied in all material respects with applicable local, state and federal laws and regulations, including, without limitation, the federal Truth-in-Lending Act and other consumer protection laws, real estate settlement procedure, usury, equal credit opportunity, disclosure and recording laws;
(xvii) With respect to each Mortgage Loan, a lender's title insurance policy (issued in standard form by a title insurance company authorized to transact business in the state where the related Mortgaged Property is located), in an amount at least equal to the Original Principal Amount of such Mortgage Loan insuring the mortgagee's interest under the related Mortgage Loan as the holder of a valid lien of record on the real property described in the related Mortgage (subject only to exceptions of the character referred to in paragraph (viii) above), was effective on the date of the origination of such Mortgage Loan, and, as of the Closing Date or related Subsequent Transfer Date, as applicable, such policy is in full force and effect and thereafter such policy shall continue in full force and effect and shall inure to the benefit of the Certificateholders upon consummation of the transactions contemplated by this Agreement;
(xviii) As of the Cut-off Date or Subsequent Cut-off Date, as applicable, either (a) the improvements upon each Mortgaged Property are covered by a valid and existing hazard insurance policy (which may be a blanket policy) with a generally acceptable carrier that provides for fire and extended coverage representing coverage not less than the least of (a) the outstanding principal balance of the related Mortgage Loan (together, in the case of a Junior Mortgage Loan, with the outstanding principal balance of the Senior Lien), (b) the minimum amount required to compensate for damage or loss on a replacement cost basis or (c) the full insurable value of the Mortgaged Property or (b) in the case of a Junior Mortgage Loan, a policy has been issued by a generally acceptable carrier that will cover the full Principal Balance of such Junior Mortgage Loan in the event of a loss covered by a hazard typically insured against by the type of policy referred to in clause (xviii)(a);
(xix) If any Mortgaged Property is in an area identified in the Federal Register by FEMA as having special flood hazards, a flood insurance policy in a form meeting the requirements of the current guidelines of the Federal Insurance Administration, if obtainable with respect to such Mortgaged Property, is in effect with respect to such Mortgaged Property with a generally acceptable carrier in an amount representing coverage not less than
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Aames Capital Corp)
Representations and Warranties of the Seller Regarding the Mortgage Loans. The Seller represents and warrants to the Trustee, the Depositor, the Servicer Certificate Insurer and the Certificateholders as of the Closing Date and, with respect to any Subsequent Mortgage Loan, as of the Subsequent Transfer Date (in either case except as otherwise expressly stated) that, as to each Mortgage Loan conveyed to the Trust by it:
(i) The information with respect to each Mortgage Loan set forth in the Mortgage Loan Schedule or Subsequent Mortgage Loan Schedule is true and correct as of the related Cut-off Date or related Subsequent Transfer Date;
(ii) All of the original or certified documentation set forth in Section 2.01 (including all material documents related thereto), with respect to each Mortgage Loan has been or will be delivered to the Trustee on the Closing Date or as otherwise provided in Section 2.01 or Section 2.02, as applicableapplicable and no more than 2 Mortgage Loans are the subject of lost note affidavits;
(iii) Each related Mortgaged Property is improved by a one- to four-family residential dwelling owned by the related Mortgagor in fee simple that is permanently affixed to the land and constitutes real property under the laws of the state in which the Mortgaged Property is located but shall not include co-operatives or mobile homes;
(iv) Each Mortgage Loan is a "qualified mortgage" as defined in Section 860G(a)(3) of the Code and no such Mortgage Loan has a loan-to-value ratio (calculated in accordance with the REMIC Provisions) in excess of 125%; none of the Mortgage Loans are either "consumer credit contracts" or "purchase money loans" as such terms are 45 51 defined in 16 C.F.R. ss. Section 433; with respect to each Mortgage Loan that is a "mortgage" as such term is defined in 15 U.S.C. 1602(aa), no obligor has or will have a claim or defense under such Mortgage Loan;
(v) As of the Cut-off Date, no Initial Mortgage Loan included in the Fixed Rate Group has a Combined Loan-to-Value Ratio in excess of 90% and no Initial Mortgage Loan included in the Adjustable Rate Group has a Loan-to-Value Ratio in excess of 10090%; except that Mortgage Loans in the Fixed Rate Group representing not more than 2.00% of the Original Fixed Rate Group Balance have Combined Loan-to-Value Ratios between 90.00% and 99.00% and Mortgage Loans in the Adjustable Rate Group representing not more thanthan 0.50% of the Original Adjustable Rate Group Balance have Combined Loan-to-Value Ratios between 90.00% and 95.00%;
(vi) Each Mortgage Loan was originated by the Seller, an Affiliate of the Seller or by an originator not affiliated with the Seller authorized to originate such Mortgage Loan and is being serviced by the Seller;
(vii) Each Initial Mortgage Loan included in the Fixed Rate Group as of the Cut-off Date bears a fixed Mortgage Loan Rate of at least 6.700% per annum and each Initial Mortgage Loan included in the Adjustable Rate Group as of the Cut-off Date is an Adjustable Rate Mortgage Loan that has a Minimum Rate of not less than 5.050% per annum and a Mortgage Loan Rate as of the Cut-off Date of not less than 5.750% per annum; the terms of each Mortgage Loan included in the Adjustable Rate Group require that adjustments in the related Mortgage Loan Rate be made employing the related Index measured as of a date not more than three months prior to the related adjustment date;
(viii) Each Mortgage Note provides for a schedule of substantially level and equal Monthly Mortgage Payments (subject, in the case of an Adjustable Rate Mortgage Loan, to periodic adjustments relating to changes in the Mortgage Loan Rate) that are sufficient to amortize fully the principal balance of such Mortgage Note on or before its maturity date, except that, Mortgage Notes with respect to Initial Mortgage Loans in the Fixed Rate Group representing not more than 0.50% of the initial Fixed Rate Group Balance, provide for level and equal Monthly Mortgage Payments that are sufficient to amortize fully the principal balances of such Notes over a period not exceeding 30 years, with "balloon" payments at stated maturity that are substantially in excess of the Monthly Mortgage Payments;
(ix) Each Mortgage is a valid and subsisting lien of record on the Mortgaged Property having the priority indicated on the Mortgage Loan Schedule, subject, in the case of any Junior Mortgage Loan, only to any Senior Lien or Senior Liens on such Mortgaged Property and subject in all cases to the exceptions to title set forth in the title insurance policy with respect to the related Mortgage Loan, which exceptions are generally acceptable to home equity mortgage lending institutions, and such other exceptions to which similar properties are commonly subject and that do not individually, or in the aggregate, materially and adversely affect the benefits of the security intended to be provided by such Mortgage;
(x) Immediately prior to the sale, transfer and assignment herein contemplated, the Seller held good and indefeasible title to, and was the sole owner of, each Mortgage Loan conveyed by the Seller subject to no liens, charges, mortgages, encumbrances or rights of others, except with respect to liens that will be released simultaneously with such transfer and assignment; and immediately upon the transfer and assignment herein contemplated, the Trustee will hold good and indefeasible title to, and be the sole owner of, each Mortgage Loan subject to no liens, charges, mortgages, encumbrances or rights of others;
(xi) The Mortgage Loan Rate for each Adjustable Rate Mortgage Loan will be adjustable on each related Adjustment Date and will equal the sum, rounded upward to the nearest three decimal places, of the Index plus the related Gross Margin, subject to any related Minimum Rates, Maximum Rates or any limitations or periodic adjustments, in each case as specified in the related Mortgage Loan Schedule. No Mortgage Loans in the Fixed Rate Group are subject to negative amortization and no Mortgage Loans in the Adjustable Rate Group are subject to negative amortization. As of the Cut-off Date, the Mortgage Notes relating to not more than 86% of the Initial Mortgage Loans in the Adjustable Rate Group, by Original Adjustable Rate Group Balance, provide for initial Adjustment Dates that are more than two or more years from their respective origination dates;
(xii) With respect to any Adjustable Rate Mortgage Loan, no mortgage document in the Mortgage File contains any provision permitting or requiring conversion of the Mortgage Loan to a fixed interest rate nor is the Mortgage Loan Rate conditioned upon Mortgagor maintaining accounts with Seller;
(xiii) As of the Closing Date or Subsequent Cut-off Date, as appropriate (a) no Mortgage Loan had two or more Monthly Mortgage Payments past due and (b) not more than 2.04% of the Initial Mortgage Loans (by Original Pool Balance) had one or more Monthly Payments past due;
(xiv) As of the related Cut-off Date or Subsequent Cut-off Date, as appropriate, there is no delinquent tax or assessment lien on any Mortgaged Property, and, to the best knowledge of the Seller, each Mortgaged Property is free of damage and is in good repair and is not affected by hazardous or toxic wastes or substances;
(xv) There is no offset, right of rescission, counterclaim or defense, including the defense of usury, with respect to any Mortgage Note or Mortgage, nor will the operation of any of the terms of the Mortgage Note or the Mortgage, or the exercise of any right thereunder, render either the Mortgage Note or the Mortgage unenforceable in whole or in part, or subject to any right to rescission, set-off, counterclaim or defense,
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Aames Mortgage Trust 1999-1)
Representations and Warranties of the Seller Regarding the Mortgage Loans. The Seller represents and warrants to the Trustee, the Depositor, the Servicer Certificate Insurer and the Certificateholders as of the Closing Date and, with respect to any Subsequent Mortgage Loan, as of the Subsequent Transfer Date (in either case except as otherwise expressly stated) that, as to each Mortgage Loan conveyed to the Trust by it:
(i) The information with respect to each Mortgage Loan set forth in the Mortgage Loan Schedule or Subsequent Mortgage Loan Schedule is true and correct as of the related Cut-off Date or related Subsequent Transfer Date;
(ii) All of the original or certified documentation set forth in Section 2.01 or Section 2.02, as applicable (including all material documents related thereto), with respect to each Mortgage Loan has been or will be delivered to the Trustee on the Closing Date or as otherwise provided in Section 2.01 or Section 2.02, as applicable;
(iii) Each The related Mortgaged Property is improved by a one- to four-family residential dwelling owned by the related Mortgagor in fee simple simple, which may include condominiums, townhouses and manufactured housing or modular homes that is are permanently affixed to the land and constitutes constitute real property under the laws of the state in which the Mortgaged Property is located but shall not include co-operatives or mobile homes;
(iv) Each Mortgage Loan is a "qualified mortgage" as defined in Section 860G(a)(3) of the Code and no such Mortgage Loan has a loan-to-value ratio (calculated in accordance with the REMIC Provisions) in excess of 125%; none of the Mortgage Loans are either "consumer credit contracts" or "purchase money loans" as such terms are defined in 16 C.F.R. ss. 433; with respect to each Mortgage Loan that is a "mortgage" as such term is defined in 15 U.S.C. 1602(aa), no obligor has or will have a claim or defense under such Mortgage Loan;
(v) As of the Cut-off Date or Subsequent Cut-off Date, as applicable, no Initial Mortgage Loan included in Group I has a Combined Loan-to-Value Ratio in excess of 86%, no Mortgage Loan included in Group II has a Loan-to-Value Ratio in excess of 10090%; and , except that Mortgage Loans representing not more thanthan 0.50% of the Original Group II Balance have Combined Loan-to-Value Ratios of up to 98%;
(v) Each Mortgage Loan was originated by an Affiliate of the Company or an by an originator not affiliated with the Company authorized to originate such Mortgage Loan and is being serviced by the Company;
(vi) Each Mortgage Loan included in Group I as of the Cut-off Date bears a fixed Mortgage Loan Rate of at least 7.74% per annum and each Mortgage Loan included in Group II as of the Cut-off Date is an Adjustable Rate Mortgage Loan that has a Minimum Rate of not less than 4.88% per annum and a Mortgage Loan Rate as of the Cut-off Date of not less than 4.95% per annum; Each Subsequent Mortgage Loan included in Group I will bear a fixed Mortgage Loan Rate of not less than 8.45% and each Subsequent Mortgage Loan included in Group II will have a Minimum Rate of not less than 4.95%; the terms of each Mortgage Loan or Subsequent Mortgage Loan included in Group II require that adjustments in the related Mortgage Loan Rate be made employing the related Index measured as of a date not more than three months prior to the related adjustment date;
(vii) Each Mortgage Note provides for a schedule of substantially level and equal Monthly Mortgage Payments (subject, in the case of an Adjustable Rate Mortgage Loan, to periodic adjustments relating to changes in the Mortgage Loan Rate) that are sufficient to amortize fully the principal balance of such Mortgage Note on or before its maturity date, except that, Mortgage Notes with respect to Mortgage Loans in Group I representing not more than 12.62% of the Original Group I Balance and Mortgage Notes with respect to Mortgage Loans in Group II representing not more than 0.20% of the Original Group II Balance, provide for level and equal Monthly Mortgage Payments that are sufficient to amortize fully the principal balances of such Notes over a period not exceeding 30 years, with "balloon" payments at stated maturity that are substantially in excess of the Monthly Mortgage Payments;
(viii) Each Mortgage is a valid and subsisting lien of record on the Mortgaged Property having the priority indicated on the Mortgage Loan Schedule, subject, in the case of any Junior Mortgage Loan, only to any Senior Lien or Senior Liens on such Mortgaged Property and subject in all cases to the exceptions to title set forth in the title insurance policy with respect to the related Mortgage Loan, which exceptions are generally acceptable to home equity mortgage lending institutions, and such other exceptions to which similar properties are commonly subject and that do not individually, or in the aggregate, materially and adversely affect the benefits of the security intended to be provided by such Mortgage;
(ix) Immediately prior to the sale, transfer and assignment herein contemplated, the Company held good and indefeasible title to, and was the sole owner of, each Mortgage Loan conveyed by the Company subject to no liens, charges, mortgages, encumbrances or
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Aames Capital Corp)
