Representations and Warranties of the Seller Relating to the Mortgage Loans. The Seller hereby represents and warrants to the Purchaser that as to each Mortgage Loan as of the Closing Date (unless otherwise set forth herein): (i) The information set forth in the Closing Schedule is true and correct in all material respects as of the Cut-Off Date; (ii) No Monthly Payment required to be made under any Mortgage Loan has been contractually delinquent by one month or more at any time preceding the date such Mortgage Loan was purchased by the Seller; (iii) To the best of the Seller’s knowledge, there are no delinquent taxes, assessment liens or insurance premiums affecting the related Mortgaged Property; (iv) The buildings and improvements on the Mortgaged Property are insured against loss by fire and hazards of extended coverage (excluding earthquake insurance) in an amount which is at least equal to the lesser of (i) the amount necessary to compensate for any damage or loss to the improvements which are a part of such property on a replacement cost basis or (ii) the outstanding principal balance of the Mortgage Loan. To the best of the Seller’s knowledge, if the Mortgaged Property is in an area identified on a flood hazard map or flood insurance rate map issued by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration is in effect. All such insurance policies contain a standard mortgagee clause naming the originator of the Mortgage Loan, its successors and assigns as mortgagee and the Seller has not engaged in any act or omission which would impair the coverage of any such insurance policies. Except as may be limited by applicable law, the Mortgage obligates the Mortgagor thereunder to maintain all such insurance at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to maintain such insurance at Mortgagor's cost and expense and to seek reimbursement therefor from the Mortgagor; (v) Each Mortgage Loan and the related Prepayment Charge complied in all material respects with 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, predatory and abusive lending, fair housing, or disclosure laws applicable to the origination and servicing of Mortgage Loans of a type similar to the Mortgage Loans and the consummation of the transactions contemplated hereby will not involve the violation of any such laws; (vi) Except as the Mortgage File may reflect, the Mortgage has not been satisfied, cancelled, subordinated or rescinded in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, cancellation, subordination, rescission or release; (vii) The Mortgage was recorded or was submitted for recording in accordance with all applicable laws and is a valid, existing and enforceable first lien on the Mortgaged Property including all improvements on the Mortgaged Property; (viii) The Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, insured under the related title policy, and enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by a bankruptcy, insolvency or reorganization; (ix) The Seller is the sole legal, beneficial and equitable owner of the Mortgage Note and the Mortgage and has the full right to convey, transfer and sell the Mortgage Loan to the Purchaser free and clear of any encumbrance, equity, lien, pledge, charge, claim or security interest and immediately upon the sale, assignment and endorsement of the Mortgage Loans from the Seller to the Purchaser, the Purchaser shall have good and indefeasible title to and be the sole legal owner of the Mortgage Loans subject only to any encumbrance, equity, lien, pledge, charge, claim or security interest arising out of the Purchaser’s actions; (x) Each Mortgage Loan is covered by either (a) an attorney’s opinion of title and abstract of title the form and substance of which is acceptable to mortgage lending institutions making mortgage loans in the area where the Mortgaged Property is located or (b) a valid and binding American Land Title Association lender's title insurance policy issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located. No claims have been filed under such lender's title insurance policy, and the Seller has not done, by act or omission, anything that would impair the coverage of the lender's title insurance policy; (xi) To the best of the Seller’s knowledge, there is no material default, breach, violation event or event of acceleration existing under the Mortgage or the 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 material default, breach, violation or event of acceleration, and the Seller has not, nor has its predecessors, waived any material default, breach, violation or event of acceleration; (xii) To the best of the Seller’s knowledge, no Mortgage Loan permits negative amortization or the deferral of accrual interest; (xiii) As of the date the Mortgage Loan was purchased by the Seller, to the best of the Seller’s knowledge, there was no proceeding pending for the total or partial condemnation of the Mortgaged Property; (xiv) To the best of the Seller’s knowledge, the Mortgage Loan is not subject to any valid right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, 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 such right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto; (xv) To the best of the Seller’s knowledge, each Mortgage Loan was originated on forms acceptable to FNMA or FHLMC; (xvi) The Mortgaged Property is free of material damage and in good repair, excepting therefrom any Mortgage Loan subject to an escrow withhold as shown on the Closing Schedule and only to the extent of that escrow withhold; (xvii) All parties to the Mortgage Note had the legal capacity to execute the Mortgage Note and the Mortgage, and the Mortgage Note and the Mortgage have been duly executed by such parties; (xviii) To the best of the Seller’s knowledge, at the time of origination of the Mortgage Loan, no appraised improvement located on or being part of the Mortgaged Property was in violation of any applicable zoning law or regulation and to the best of the Seller’s knowledge, all inspections, licenses and certificates required in connection with the origination of any Mortgage Loan with respect to the occupancy of the Mortgaged Property, have been made or obtained from the appropriate authorities; (xix) The Mortgage File contains an appraisal of the related Mortgaged Property which satisfied the standards of FNMA and FHLMC and was made prior to the origination of the Mortgage Loan by a qualified appraiser, duly appointed by the related originator and was made in accordance with the relevant provisions of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989; (xx) Each Mortgage Loan is an obligation which is principally secured by an interest in real property within the meaning of Treasury Regulation section 1.860G 2(a); (xxi) Each Mortgage Loan is directly secured by a first lien on, and consists of a single parcel of, real property with a detached one-to-four family residence erected thereon, a townhouse or an individual condominium unit in a condominium project, or an individual unit in a planned unit development or stock in a cooperative housing corporation; (xxii) With respect to any Mortgage Loan with an original Loan-to-Value Ratio greater than 80%, the Mortgage Loan will be insured by a primary mortgage guaranty insurance policy, issued by an insurer which meets the requirements of FNMA and FHLMC, which insures that portion of the Mortgage Loan in excess of the portion of the appraised value of the Mortgaged Property required by FNMA. All provisions of such primary mortgage guaranty insurance policy have been and are being complied with, such policy is in full force and effect, and all premiums due thereunder have been paid. Any Mortgage subject to any such primary mortgage guaranty insurance policy obligates the Mortgagor thereunder to maintain such insurance and to pay all premiums and charges in connection therewith. The Mortgage Interest Rate for the Mortgage Loan does not include any such insurance premium; (xxiii) Each Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority, or by a mortgagee approved by the Secretary of Housing and Urban Development or any successor thereto; (xxiv) No Mortgage Loan is (a) subject to, covered by or in violation of the provisions of the Homeownership and Equity Protection Act of 1994, as amended, (b) a “high cost”, “covered”, “abusive”, “predatory”, or “high risk” mortgage loan (or a similarly designated loan using different terminology) under any federal, state or local law, including without limitation, the provisions of the Georgia Fair Lending Act, New York Banking Law, Section 6-1, the Arkansas Home Loan Protection Act, effective as of June 14, 2003, Kentucky State Statute KRS 360.100, effective as of June 25, 2003 or any other statute or regulation providing assignee liability to holders of such mortgage loans, (c) subject to or in violation of any such or comparable federal, state or local statutes or regulations; (xxv) [Reserved]; (xxvi) No Mortgage Loan is a “High-Cost Home Loan” or a refinanced “Covered Home Loan,” in each case, as defined in the New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46;10B-22 et seq.); (xxvii) No Mortgage Loan is a subsection 10 mortgage under the Oklahoma Home Ownership and Equity protection Act; (xxviii) No Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.

Appears in 7 contracts

Samples: Mortgage Loan Purchase Agreement (Deutsche Alt-a Securities Mortgage Loan Trust, Series 2007-Ramp1), Mortgage Loan Purchase Agreement (Deutsche Alt-a Securities Mortgage Loan Trust, Series 2006-Ar5), Mortgage Loan Purchase Agreement (Deutsche Alt-a Securities Mortgage Loan Trust, Series 2007-Ar1)

Representations and Warranties of the Seller Relating to the Mortgage Loans. The Seller hereby represents and warrants to the Purchaser that as to each Mortgage Loan as of the Closing Date (unless otherwise set forth herein): (i) The information set forth in the Closing Schedule is true and correct in all material respects as of the Cut-Off Date; (ii) No Monthly Payment required to be made under any Mortgage Loan has been contractually delinquent by one month or more at any time preceding the date such Mortgage Loan was purchased by the Seller; (iii) To the best of the Seller’s knowledge, there are no delinquent taxes, assessment liens or insurance premiums affecting the related Mortgaged Property; (iv) The buildings and improvements on the Mortgaged Property are insured against loss by fire and hazards of extended coverage (excluding earthquake insurance) in an amount which is at least equal to the lesser of (i) the amount necessary to compensate for any damage or loss to the improvements which are a part of such property on a replacement cost basis or (ii) the outstanding principal balance of the Mortgage Loan. To the best of the Seller’s knowledge, if the Mortgaged Property is in an area identified on a flood hazard map or flood insurance rate map issued by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration is in effect. All such insurance policies contain a standard mortgagee clause naming the originator of the Mortgage Loan, its successors and assigns as mortgagee and the Seller has not engaged in any act or omission which would impair the coverage of any such insurance policies. Except as may be limited by applicable law, the Mortgage obligates the Mortgagor thereunder to maintain all such insurance at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to maintain such insurance at Mortgagor's cost and expense and to seek reimbursement therefor from the Mortgagor; (v) Each Mortgage Loan and the related Prepayment Charge complied in all material respects with 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, predatory and abusive lending, fair housing, or disclosure laws applicable to the origination and servicing of Mortgage Loans of a type similar to the Mortgage Loans and the consummation of the transactions contemplated hereby will not involve the violation of any such laws; (vi) Except as the Mortgage File may reflect, the Mortgage has not been satisfied, cancelled, subordinated or rescinded in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, cancellation, subordination, rescission or release; (vii) The Mortgage was recorded or was submitted for recording in accordance with all applicable laws and is a valid, existing and enforceable first lien on the Mortgaged Property including all improvements on the Mortgaged Property; (viii) The Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, insured under the related title policy, and enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by a bankruptcy, insolvency or reorganization; (ix) The Seller is the sole legal, beneficial and equitable owner of the Mortgage Note and the Mortgage and has the full right to convey, transfer and sell the Mortgage Loan to the Purchaser free and clear of any encumbrance, equity, lien, pledge, charge, claim or security interest and immediately upon the sale, assignment and endorsement of the Mortgage Loans from the Seller to the Purchaser, the Purchaser shall have good and indefeasible title to and be the sole legal owner of the Mortgage Loans subject only to any encumbrance, equity, lien, pledge, charge, claim or security interest arising out of the Purchaser’s actions; (x) Each Mortgage Loan is covered by either (a) an attorney’s opinion of title and abstract of title the form and substance of which is acceptable to mortgage lending institutions making mortgage loans in the area where the Mortgaged Property is located or (b) a valid and binding American Land Title Association lender's title insurance policy issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located. No claims have been filed under such lender's title insurance policy, and the Seller has not done, by act or omission, anything that would impair the coverage of the lender's title insurance policy; (xi) To the best of the Seller’s knowledge, there is no material default, breach, violation event or event of acceleration existing under the Mortgage or the 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 material default, breach, violation or event of acceleration, and the Seller has not, nor has its predecessors, waived any material default, breach, violation or event of acceleration; (xii) ~~To the best of the Seller’s knowledge, no Mortgage Loan permits negative amortization or the deferral of accrual interest; (xiii)~~ As of the date the Mortgage Loan was purchased by the Seller, to the best of the Seller’s knowledge, there was no proceeding pending for the total or partial condemnation of the Mortgaged Property; (~~xiv~~xiii) To the best of the Seller’s knowledge, the Mortgage Loan is not subject to any valid right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, 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 such right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto; (xvxiv) To the best of the Seller’s knowledge, each Mortgage Loan was originated on forms acceptable to FNMA or FHLMC; (~~xvi~~xv) The Mortgaged Property is free of material damage and in good repair, excepting therefrom any Mortgage Loan subject to an escrow withhold as shown on the Closing Schedule and only to the extent of that escrow withhold; (~~xvii~~xvi) All parties to the Mortgage Note had the legal capacity to execute the Mortgage Note and the Mortgage, and the Mortgage Note and the Mortgage have been duly executed by such parties; (~~xviii~~xvii) To the best of the Seller’s knowledge, at the time of origination of the Mortgage Loan, no appraised improvement located on or being part of the Mortgaged Property was in violation of any applicable zoning law or regulation and to the best of the Seller’s knowledge, all inspections, licenses and certificates required in connection with the origination of any Mortgage Loan with respect to the occupancy of the Mortgaged Property, have been made or obtained from the appropriate authorities; (~~xix~~xviii) The Mortgage File contains an appraisal of the related Mortgaged Property which satisfied the standards of FNMA and FHLMC and was made prior to the origination of the Mortgage Loan by a qualified appraiser, duly appointed by the related originator and was made in accordance with the relevant provisions of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989; (xxxix) Each Mortgage Loan is an obligation which is principally secured by an interest in real property within the meaning of Treasury Regulation section 1.860G 2(a); (~~xxi~~xx) Each Mortgage Loan is directly secured by a first lien on, and consists of a single parcel of, real property with a detached one-to-four family residence erected thereon, a townhouse or an individual condominium unit in a condominium project, or an individual unit in a planned unit development or stock in a cooperative housing corporation; (~~xxii~~xxi) With respect to any Mortgage Loan with an original Loan-to-Value Ratio greater than 80%, the Mortgage Loan will be insured by a primary mortgage guaranty insurance policy, issued by an insurer which meets the requirements of FNMA and FHLMC, which insures that portion of the Mortgage Loan in excess of the portion of the appraised value of the Mortgaged Property required by FNMA. All provisions of such primary mortgage guaranty insurance policy have been and are being complied with, such policy is in full force and effect, and all premiums due thereunder have been paid. Any Mortgage subject to any such primary mortgage guaranty insurance policy obligates the Mortgagor thereunder to maintain such insurance and to pay all premiums and charges in connection therewith. The Mortgage Interest Rate for the Mortgage Loan does not include any such insurance premium; (~~xxiii~~xxii) Each Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority, or by a mortgagee approved by the Secretary of Housing and Urban Development or any successor thereto; (~~xxiv~~xxiii) No Mortgage Loan is (a) subject to, covered by or in violation of the provisions of the Homeownership and Equity Protection Act of 1994, as amended, (b) a “high cost”, “covered”, “abusive”, “predatory”, or “high risk” mortgage loan (or a similarly designated loan using different terminology) under any federal, state or local law, including without limitation, the provisions of the Georgia Fair Lending Act, New York Banking Law, Section 6-1, the Arkansas Home Loan Protection Act, effective as of June 14, 2003, Kentucky State Statute KRS 360.100, effective as of June 25, 2003 or any other statute or regulation providing assignee liability to holders of such mortgage loans, (c) subject to or in violation of any such or comparable federal, state or local statutes or regulations; (~~xxv~~xxiv) [Reserved]; (~~xxvi~~xxv) No Mortgage Loan is a “High-Cost Home Loan” or a refinanced “Covered Home Loan,” in each case, as defined in the New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46;10B-22 et seq.); (~~xxvii~~xxvi) No Mortgage Loan is a subsection 10 mortgage under the Oklahoma Home Ownership and Equity protection Act; (~~xxviii~~xxvii) No Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.

Appears in 3 contracts

Samples: Mortgage Loan Purchase Agreement (Deutsche Alt-a Securities Mortgage Loan Trust, Series 2007-Oa2), Mortgage Loan Purchase Agreement (Deutsche Alt-a Securities Mortgage Loan Trust, Series 2007-Oa4 /DE), Mortgage Loan Purchase Agreement (Deutsche Alt-a Securities Mortgage Loan Trust, Series 2007-Oa3 /DE)

Representations and Warranties of the Seller Relating to the Mortgage Loans. The Seller hereby represents and warrants to the Purchaser that as to each Mortgage Loan as of the Closing ~~Date (unless otherwise set forth herein):~~Date: (i) ~~The information set forth in~~ Information provided to the ~~Closing Schedule~~ Rating Agencies, including the loan level detail, is true and correct ~~in all material respects as of~~ according to the ~~Cut-Off Date~~Rating Agency requirements; (ii) No fraud has taken place on the part of the Mortgagor or any other party involved in the origination or servicing of the Mortgage Loan; (iii) No Monthly Payment required to be made under any Mortgage Loan has ~~been~~ been, or will be, contractually delinquent by one month or more on, or at any time ~~preceding~~ preceding, the date such Mortgage Loan was purchased by the Seller; (~~iii~~iv) To Neither the ~~best~~ Seller nor the related originator of the ~~Seller’s knowledge, there~~ Mortgage Loan has advanced any Monthly Payment required under the terms of the Mortgage Note; (v) There are no delinquent taxes, assessment liens or insurance premiums affecting the related Mortgaged Property; (ivvi) The ~~buildings~~ terms of the Mortgage Note and ~~improvements on~~ the Mortgage have not been materially impaired, waived, altered or modified in any respect, except by written instruments, recorded in the applicable public recording office if necessary to maintain the lien priority of the Mortgage. The substance of any such waiver, alteration or modification has been approved by the title insurer, to the extent required by the related policy. No Mortgagor has been released, in whole or in part, except in connection with an assumption agreement (approved by the title insurer to the extent required by the policy) and which assumption agreement has been delivered to the Trustee; (vii) The Mortgaged Property ~~are~~ is insured against loss by fire and hazards of extended coverage (excluding earthquake insurance) in an amount which is at least equal to the lesser of (i) the amount necessary to compensate for any damage or loss to the improvements which are a part of such property on a replacement cost basis or (ii) the outstanding principal balance of the Mortgage Loan. ~~To the best of the Seller’s knowledge, if~~ If the Mortgaged Property is in an area identified on a flood hazard map or flood insurance rate map issued by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration is in effect. All such insurance policies contain a standard mortgagee clause naming the originator of the Mortgage Loan, its successors and assigns as mortgagee and the Seller has not engaged in any act or omission which would impair the coverage of any such insurance policies. Except as may be limited by applicable law, the Mortgage obligates the Mortgagor thereunder to maintain all such insurance at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to maintain such insurance at Mortgagor's cost and expense and to seek reimbursement therefor from the Mortgagor; (vviii) Each Mortgage Loan and the related Prepayment ~~Charge~~ Charge, if any, complied in all material respects with any and all requirements of any federal, state or local law including, without limitation, usury, truth in lending, anti-predatory lending, real estate settlement procedures, consumer credit protection, equal credit opportunity, ~~predatory and abusive lending,~~ fair ~~housing,~~ housing or disclosure laws applicable to the origination and servicing of ~~Mortgage Loans of a type similar to~~ the Mortgage Loans and the consummation of the transactions contemplated hereby will not involve the violation of any such laws; (viix) ~~Except as the Mortgage File may reflect, the~~ The Mortgage has not been satisfied, cancelled, subordinated (other than with respect to second lien Mortgage Loans, the subordination to the first lien) or ~~rescinded~~ rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, cancellation, subordination, rescission or release; (~~vii~~x) The Mortgage was recorded or was submitted for recording in accordance with all applicable laws and is a valid, existing and enforceable perfected first or second lien on the Mortgaged Property including all improvements on the Mortgaged Property, subject only to (a) the lien of the current real property taxes and (b) covenants, conditions and restrictions, rights of way and easements; (~~viii~~xi) The Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, insured under the related title policy, and enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by a bankruptcy, insolvency or reorganization; (ixxii) The Seller is the sole legal, beneficial and equitable owner of the Mortgage Note and the Mortgage and has the full right to convey, transfer and sell the Mortgage Loan to the Purchaser free and clear of any encumbrance, equity, lien (other than with respect to second lien Mortgage Loans, the subordination to the first lien), pledge, charge, claim or security interest and immediately upon the sale, assignment and endorsement of the Mortgage Loans from the Seller to the Purchaser, the Purchaser shall have good and indefeasible title to and be the sole legal owner of the Mortgage Loans subject only to any encumbrance, equity, lien, pledge, charge, claim or security interest arising out of the Purchaser’s actions; (xxiii) Each Mortgage Loan is covered by either (a) an attorney’s opinion of title and abstract of title the form and substance of which is acceptable to mortgage lending institutions making mortgage loans in the area where the Mortgaged Property is located or (b) a valid and binding American Land Title Association lender's title insurance policy issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, which title insurance policy is generally acceptable to Xxxxxx Xxx and Xxxxxxx Mac. No claims have been filed under such lender's title insurance policy, and the Seller has not done, by act or omission, anything that would impair the coverage of the lender's title insurance policy; (xixiv) ~~To the best of the Seller’s knowledge, there~~ There is no material default, breach, violation event or event of acceleration existing under the Mortgage or the 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 material default, breach, violation or event of acceleration, and the Seller has not, nor has its predecessors, waived any material default, breach, violation or event of acceleration; (~~xii~~xv) To There are no mechanics' or similar liens or claims which have been filed for work, labor or material provided to the ~~best~~ related Mortgaged Property prior to the origination of the ~~Seller’s knowledge~~Mortgage Loan which are or may be liens prior to, no or equal or coordinate with, the lien of the related Mortgage, except as may be disclosed in the related title policy; (xvi) Each Mortgage Note is payable on the first day of each month in equal monthly installments of principal and interest (subject to adjustment in the case of the adjustable rate Mortgage Loans), with interest calculated on a 30/360 basis and payable in arrears, sufficient to amortize the Mortgage Loan fully by the stated maturity date over an original term from commencement of amortization to not more than thirty (30) years. No Mortgage Loan is a balloon loan. No Mortgage Loan permits negative ~~amortization or the deferral of accrual interest~~amortization; (~~xiii~~xvii) As The servicing practices used in connection with the servicing of the Mortgage Loans have been in all respects reasonable and customary in the mortgage servicing industry of like mortgage loan servicers, servicing mortgage loans similar to the Mortgage Loans in the same jurisdiction as the Mortgaged Property; (xviii) At the time of origination of the Mortgage Loan there was no proceeding pending for the total or partial condemnation of the Mortgaged Property and, as of the date ~~the~~ such Mortgage Loan was purchased by the ~~Seller~~Purchaser, to the best of the ~~Seller~~Purchaser’s ~~knowledge,~~ knowledge there ~~was~~ is no proceeding pending for the total or partial condemnation of the Mortgaged Property; (~~xiv~~xix) To The Mortgage and related Mortgage Note contain customary and enforceable provisions such as to render the ~~best~~ rights and remedies of the ~~Seller’s knowledge~~holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security provided thereby, including, (a) in the case of a Mortgage designated as a deed of trust, by trustee's sale, and (b) otherwise by judicial foreclosure; (xx) The Mortgage Note is not and has not been secured by any collateral except the lien of the related Mortgage referred to in subsection (x) above; (xxi) In the event the Mortgage constitutes 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 the Mortgage, and no fees or expenses are or will become payable by the Seller to the trustee under the deed of trust, except in connection with a trustee's sale after default by the Mortgagor; (xxii) The Mortgage Loan is not subject to any valid right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, 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 such right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto; (~~xv) To the best of the Seller’s knowledge, each Mortgage Loan was originated on forms acceptable to FNMA or FHLMC; (xvi~~xxiii) The Mortgaged Property is free of material damage and in good repair, excepting therefrom any Mortgage Loan subject to an escrow withhold as shown on the ~~Closing Schedule and only to the extent of that escrow withhold~~Mortgage Loan Schedule; (~~xvii~~xxiv) All of the improvements which were included in determining the appraised value of the Mortgaged Property lie wholly within the Mortgaged Property's boundary lines and no improvements on adjoining properties encroach upon the Mortgaged Property, excepting therefrom: (i) any encroachment insured against in the lender's title insurance policy identified in clause (xiii) above, (ii) any encroachment generally acceptable to mortgage loan originators doing business in the same jurisdiction as the Mortgaged Property, and (iii) any encroachment which does not materially interfere with the benefits of the security intended to be provided by such Mortgage; (xxv) All parties to the Mortgage Note had the legal capacity to execute the Mortgage Note and the Mortgage, and the Mortgage Note and the Mortgage have been duly executed by such parties; (~~xviii~~xxvi) To the best of the Seller’s knowledge, at the time of origination of the Mortgage Loan, no appraised improvement located on or being part of the Mortgaged Property was in violation of any applicable zoning law or regulation and ~~to the best of the Seller’s knowledge,~~ all inspections, licenses and certificates required in connection with the origination of any Mortgage Loan with respect to the occupancy of the Mortgaged Property, have been made or obtained from the appropriate authorities; (~~xix~~xxvii) No Mortgagor has notified the Seller of any relief requested or allowed under the Servicemember’s Civil Relief Act; (xxviii) All parties which have held an interest in the Mortgage Loan are (or during the period in which they held and disposed of such interest, were) (1) in compliance with any and all applicable licensing requirements of the state wherein the Mortgaged Property is located, (2) organized under the laws of such state, (3) qualified to do business in such state, (4) a federal savings and loan association or national bank, (5) not doing business in such state, or (6) exempt from the applicable licensing requirements of such state; (xxix) The Mortgage File contains an appraisal of the related Mortgaged Property which ~~satisfied the standards of FNMA and FHLMC and~~ was made prior to the ~~origination~~ approval of the Mortgage Loan by a qualified appraiser, duly appointed by the related originator and was made in accordance with the ~~relevant provisions of the~~ Financial Institutions Reform, Recovery, and Enforcement Act of ~~1989~~1989 and the Uniform Standards of Professional Appraisal Practice; (xxxxx) Except as may otherwise be limited by applicable law, the Mortgage contains an enforceable provision for the acceleration of the payment of the unpaid principal balance of the Mortgage Loan in the event that the Mortgaged Property is sold or transferred without the prior written consent of the Mortgagee thereunder; (xxxi) The Mortgage Loan does not contain any provision which would constitute a “buydown” provision and pursuant to which Monthly Payments are paid or partially paid with funds deposited in a separate account established by the related originator, the Mortgagor or anyone on behalf of the Mortgagor, or paid by any source other than the Mortgagor. The Mortgage Loan is not a “graduated payment mortgage loan” and the Mortgage loan does not have a shared appreciation or other contingent interest feature; (xxxii) To the best of the Seller's knowledge there is no action or proceeding directly involving the Mortgaged Property presently pending in which compliance with any environmental law, rule or regulation is at issue and the Seller has received no notice of any condition at the Mortgaged Property which is reasonably likely to give rise to an action or proceeding in which compliance with any environmental law, rule or regulation is at issue; (xxxiii) Each Mortgage Loan is an obligation which is principally secured by an interest in real property within the meaning of Treasury Regulation section ~~1.860G 2(a~~1.860G-2(a); (~~xxi~~xxxiv) Each Mortgage Loan is directly secured by a first or second lien on, and consists of a single parcel of, real property with a detached one-to-four family residence erected thereon, a townhouse or an individual condominium unit in a condominium project, or an individual unit in a planned unit development (“PUD”). No residence or ~~stock in~~ dwelling is a ~~cooperative housing corporation; (xxii) With respect to any Mortgage Loan with~~ leasehold, mobile home or a manufactured dwelling unless it is an ~~original Loan-to-Value Ratio greater than 80%, the Mortgage Loan will be insured by~~ Acceptable Manufactured Dwelling. An “Acceptable Manufactured Dwelling” is a ~~primary mortgage guaranty insurance policy, issued by an insurer which meets the requirements of FNMA and FHLMC~~manufactured dwelling, which ~~insures that portion of the Mortgage Loan in excess of the portion of the appraised value of~~ is permanently affixed to a foundation and treated as “real estate” under applicable law. No Mortgaged Property is used for commercial purposes. Mortgaged Properties which contain a home office shall not be considered as being used for commercial purposes as long as the Mortgaged Property ~~required by FNMA. All provisions of such primary mortgage guaranty insurance policy have~~ has not been altered for commercial purposes and ~~are being complied with~~is not storing any chemicals or raw materials other than those commonly used for homeowner repair, such policy is in full force and effect, and all premiums due thereunder have been paid. Any Mortgage subject to any such primary mortgage guaranty insurance policy obligates the Mortgagor thereunder to maintain such insurance and to pay all premiums and charges in connection therewith. The Mortgage Interest Rate for the Mortgage Loan does not include any such insurance premiummaintenance and/or household purposes; (xxiii) Each Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority, or by a mortgagee approved by the Secretary of Housing and Urban Development or any successor thereto; (xxiv) No Mortgage Loan is (a) subject to, covered by or in violation of the provisions of the Homeownership and Equity Protection Act of 1994, as amended, (b) a “high cost”, “covered”, “abusive”, “predatory”, or “high risk” mortgage loan (or a similarly designated loan using different terminology) under any federal, state or local law, including without limitation, the provisions of the Georgia Fair Lending Act, New York Banking Law, Section 6-1, the Arkansas Home Loan Protection Act, effective as of June 14, 2003, Kentucky State Statute KRS 360.100, effective as of June 25, 2003 or any other statute or regulation providing assignee liability to holders of such mortgage loans, (c) subject to or in violation of any such or comparable federal, state or local statutes or regulations; (xxv) [Reserved]; (xxvi) No Mortgage Loan is a “High-Cost Home Loan” or a refinanced “Covered Home Loan,” in each case, as defined in the New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46;10B-22 et seq.); (xxvii) No Mortgage Loan is a subsection 10 mortgage under the Oklahoma Home Ownership and Equity protection Act; (xxviii) No Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.

Appears in 2 contracts

Samples: Pooling and Servicing Agreement (Nomura Home Equity Loan, Inc., Home Equity Loan Trust, Series 2006-He1), Pooling and Servicing Agreement (Nomura Home Equity Loan, Inc., Home Equity Loan Trust, Series 2006-He2)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (ACE Securities Corp. Home Equity Loan Trust, Series 2006-He1)

Representations and Warranties of the Seller Relating to the Mortgage Loans. The Seller hereby represents and warrants to the Purchaser that as to each Mortgage Loan as of the Closing Date (unless otherwise set forth herein): (i) The information set forth in the Closing Schedule is true and correct in all material respects as of the Cut-Off Date; (ii) No Monthly Payment required to be made under any Mortgage Loan has been contractually delinquent by one month or more at any time preceding the date such Mortgage Loan was purchased by the Seller; (iii) To the best of the Seller’s knowledge, there are no delinquent taxes, assessment liens or insurance premiums affecting the related Mortgaged Property; (iv) The buildings and improvements on the Mortgaged Property are insured against loss by fire and hazards of extended coverage (excluding earthquake insurance) in an amount which is at least equal to the lesser of (i) the amount necessary to compensate for any damage or loss to the improvements which are a part of such property on a replacement cost basis or (ii) the outstanding principal balance of the Mortgage Loan. To the best of the Seller’s knowledge, if the Mortgaged Property is in an area identified on a flood hazard map or flood insurance rate map issued by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration is in effect. All such insurance policies contain a standard mortgagee clause naming the originator of the Mortgage Loan, its successors and assigns as mortgagee and the Seller has not engaged in any act or omission which would impair the coverage of any such insurance policies. Except as may be limited by applicable law, the Mortgage obligates the Mortgagor thereunder to maintain all such insurance at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to maintain such insurance at Mortgagor's cost and expense and to seek reimbursement therefor from the Mortgagor; (v) Each Mortgage Loan and the related Prepayment Charge complied in all material respects with 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, predatory and abusive lending, fair housing, or disclosure laws applicable to the origination and servicing of Mortgage Loans of a type similar to the Mortgage Loans and the consummation of the transactions contemplated hereby will not involve the violation of any such laws; (vi) Except as the Mortgage File may reflect, the Mortgage has not been satisfied, cancelled, subordinated or rescinded in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, cancellation, subordination, rescission or release; (vii) The Mortgage was recorded or was submitted for recording in accordance with all applicable laws and is a valid, existing and enforceable first lien on the Mortgaged Property including all improvements on the Mortgaged Property; (viii) The Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, insured under the related title policy, and enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by a bankruptcy, insolvency or reorganization; (ix) The Seller is the sole legal, beneficial and equitable owner of the Mortgage Note and the Mortgage and has the full right to convey, transfer and sell the Mortgage Loan to the Purchaser free and clear of any encumbrance, equity, lien, pledge, charge, claim or security interest and immediately upon the sale, assignment and endorsement of the Mortgage Loans from the Seller to the Purchaser, the Purchaser shall have good and indefeasible title to and be the sole legal owner of the Mortgage Loans subject only to any encumbrance, equity, lien, pledge, charge, claim or security interest arising out of the Purchaser’s actions; (x) Each Mortgage Loan is covered by either (a) an attorney’s opinion of title and abstract of title the form and substance of which is acceptable to mortgage lending institutions making mortgage loans in the area where the Mortgaged Property is located or (b) a valid and binding American Land Title Association lender's title insurance policy issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located. No claims have been filed under such lender's title insurance policy, and the Seller has not done, by act or omission, anything that would impair the coverage of the lender's title insurance policy; (xi) To the best of the Seller’s knowledge, there is no material default, breach, violation event or event of acceleration existing under the Mortgage or the 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 material default, breach, violation or event of acceleration, and the Seller has not, nor has its predecessors, waived any material default, breach, violation or event of acceleration; (xii) ~~To the best of the Seller’s knowledge, no Mortgage Loan permits negative amortization or the deferral of accrual interest; (xiii)~~ As of the date the Mortgage Loan was purchased by the Seller, to the best of the Seller’s knowledge, there was no proceeding pending for the total or partial condemnation of the Mortgaged Property; (~~xiv~~xiii) To the best of the Seller’s knowledge, the Mortgage Loan is not subject to any valid right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, 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 such right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto; (xvxiv) To the best of the Seller’s knowledge, each Mortgage Loan was originated on forms acceptable to ~~FNMA~~ Xxxxxx Xxx or ~~FHLMC~~Xxxxxxx Mac; (~~xvi~~xv) The Mortgaged Property is free of material damage and ~~in good repair~~waste, excepting therefrom any Mortgage Loan subject to an escrow withhold as shown on the Closing Schedule and only to the extent of that escrow withhold; (~~xvii~~xvi) All parties to the Mortgage Note had the legal capacity to execute the Mortgage Note and the Mortgage, and the Mortgage Note and the Mortgage have been duly executed by such parties; (~~xviii~~xvii) To the best of the Seller’s knowledge, at the time of origination of the Mortgage Loan, no appraised improvement located on or being part of the Mortgaged Property was in violation of any applicable zoning law or regulation and to the best of the Seller’s knowledge, all inspections, licenses and certificates required in connection with the origination of any Mortgage Loan with respect to the occupancy of the Mortgaged Property, have been made or obtained from the appropriate authorities; (~~xix~~xviii) The Mortgage File contains an appraisal of the related Mortgaged Property which satisfied the standards of ~~FNMA~~ Xxxxxx Mae and ~~FHLMC~~ Xxxxxxx Mac and was made prior to the origination of the Mortgage Loan by a qualified appraiser, duly appointed by the related originator and was made in accordance with the relevant provisions of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989; (xxxix) Each Mortgage Loan is an obligation which is principally secured by an interest in real property within the meaning of Treasury Regulation section 1.860G 2(a); (~~xxi~~xx) Each Mortgage Loan is directly secured by a first lien on, and consists of a single parcel of, real property with a detached one-to-four family residence erected thereon, a townhouse or an individual condominium unit in a condominium project, or an individual unit in a planned unit development ~~or stock in a cooperative housing corporation~~(“PUD”); (xxi) [Reserved]; (xxii) With respect to any Mortgage Loan with an original Loan-to-Value Ratio greater than 80%, the Mortgage Loan will be insured by a primary mortgage guaranty insurance policy, issued by an insurer which meets the requirements of FNMA and FHLMC, which insures that portion of the Mortgage Loan in excess of the portion of the appraised value of the Mortgaged Property required by FNMA. All provisions of such primary mortgage guaranty insurance policy have been and are being complied with, such policy is in full force and effect, and all premiums due thereunder have been paid. Any Mortgage subject to any such primary mortgage guaranty insurance policy obligates the Mortgagor thereunder to maintain such insurance and to pay all premiums and charges in connection therewith. The Mortgage Interest Rate for the Mortgage Loan does not include any such insurance premium; (xxiii) Each Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority, or by a mortgagee approved by the Secretary of Housing and Urban Development or any successor thereto; (~~xxiv~~xxiii) No Mortgage Loan is (a) subject to, covered by or in violation of the provisions of the Homeownership and Equity Protection Act of 1994, as amended, (b) a “high cost”, “covered”, “abusive”, “predatory”, or “high risk” mortgage loan (or a similarly designated loan using different terminology) under any federal, state or local law, including without limitation, the provisions of the Georgia Fair Lending Act, New York Banking Law, Section 6-1, the Arkansas Home Loan Protection Act, effective as of June 14, 2003, Kentucky State Statute KRS 360.100, effective as of June 25, 2003 or any other statute or regulation providing assignee liability to holders of such mortgage loans, (c) subject to or in violation of any such or comparable federal, state or local statutes or regulations; (~~xxv~~xxiv) [Reserved]; (~~xxvi~~xxv) No Mortgage Loan is a “High-Cost Home Loan” or a refinanced “Covered Home Loan,” in each case, as defined in the New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46;10B-22 et seq.); (~~xxvii~~xxvi) No Mortgage Loan is a subsection 10 mortgage under the Oklahoma Home Ownership and Equity protection Act; (~~xxviii~~xxvii) No Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (MortgageIT Securities Corp. Mortgage Loan Trust, Series 2007-1)

Representations and Warranties of the Seller Relating to the Mortgage Loans. The Seller hereby represents and warrants to the Purchaser that as to each Mortgage Loan as of the Closing ~~Date (unless otherwise set forth herein):~~Date: ~~(i) The information set forth in~~ 1. Information provided to the ~~Closing Schedule~~ Rating Agencies, including the loan level detail, is true and correct ~~in all material respects as~~ according to the Rating Agency requirements; 2. No fraud has taken place on the part of the ~~Cut-Off Date~~Mortgagor or any other party involved in the origination or servicing of the Mortgage Loan; ~~(ii)~~ 3. No Monthly Payment required to be made under any Mortgage Loan has ~~been~~ been, or will be, contractually delinquent by one month or more on, or at any time ~~preceding~~ preceding, the date such Mortgage Loan was purchased by the Seller; ~~(iii) To~~ 4. Neither the ~~best~~ Seller nor the related originator of the ~~Seller’s knowledge, there~~ Mortgage Loan has advanced any Monthly Payment required under the terms of the Mortgage Note; 5. There are no delinquent taxes, assessment liens or insurance premiums affecting the related Mortgaged Property; 6. The terms of the Mortgage Note and the Mortgage have not been materially impaired, waived, altered or modified in any respect, except by written instruments, recorded in the applicable public recording office if necessary to maintain the lien priority of the Mortgage. The substance of any such waiver, alteration or modification has been approved by the title insurer, to the extent required by the related policy. No Mortgagor has been released, in whole or in part, except in connection with an assumption agreement (ivapproved by the title insurer to the extent required by the policy) and which assumption agreement has been delivered to the Trustee; 7. The ~~buildings and improvements on the~~ Mortgaged Property ~~are~~ is insured against loss by fire and hazards of extended coverage (excluding earthquake insurance) in an amount which is at least equal to the lesser of (i) the amount necessary to compensate for any damage or loss to the improvements which are a part of such property on a replacement cost basis or (ii) the outstanding principal balance of the Mortgage Loan. ~~To the best of the Seller’s knowledge, if~~ If the Mortgaged Property is in an area identified on a flood hazard map or flood insurance rate map issued by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration is in effect. All such insurance policies contain a standard mortgagee clause naming the originator of the Mortgage Loan, its successors and assigns as mortgagee and the Seller has not engaged in any act or omission which would impair the coverage of any such insurance policies. Except as may be limited by applicable law, the Mortgage obligates the Mortgagor thereunder to maintain all such insurance at the Mortgagor's ’s cost and expense, and on the Mortgagor's ’s failure to do so, authorizes the holder of the Mortgage to maintain such insurance at Mortgagor's ’s cost and expense and to seek reimbursement therefor from the Mortgagor; ~~(v) Each Mortgage Loan and the related Prepayment Charge complied in all material respects with any~~ 8. 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, ~~predatory and abusive lending,~~ fair housing, predatory, fair lending or disclosure laws applicable to the origination and servicing of ~~Mortgage Loans of a type similar to~~ the Mortgage Loans have been complied with in all material respects, and the consummation of the transactions contemplated hereby will not involve the violation of any such laws; ~~(vi) Except as the Mortgage File may reflect, the~~ 9. The Mortgage has not been satisfied, cancelled, subordinated (other than with respect to second lien Mortgage Loans, the subordination to the first lien) or ~~rescinded~~ rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, cancellation, subordination, rescission or release; ~~(vii)~~ 10. The Mortgage was recorded or was submitted for recording in accordance with all applicable laws and is a valid, existing and enforceable perfected first or second lien on the Mortgaged Property including all improvements on the Mortgaged Property, subject only to (a) the lien of the current real property taxes and (b) covenants, conditions and restrictions, rights of way and easements; ~~(viii)~~ 11. The Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, insured under the related title policy, and enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by a bankruptcy, insolvency or reorganization; ~~(ix)~~ 12. The Seller is the sole legal, beneficial and equitable owner of the Mortgage Note and the Mortgage and has the full right to convey, transfer and sell the Mortgage Loan to the Purchaser free and clear of any encumbrance, equity, lien (other than with respect to second lien Mortgage Loans, the subordination to the first lien), pledge, charge, claim or security interest and immediately upon the sale, assignment and endorsement of the Mortgage Loans from the Seller to the Purchaser, the Purchaser shall have good and indefeasible title to and be the sole legal owner of the Mortgage Loans subject only to any encumbrance, equity, lien, pledge, charge, claim or security interest arising out of the Purchaser’s actions; ~~(x)~~ 13. Each Mortgage Loan is covered by either (a) an attorney’s opinion of title and abstract of title the form and substance of which is acceptable to mortgage lending institutions making mortgage loans in the area where the Mortgaged Property is located or (b) a valid and binding American Land Title Association lender's ’s title insurance policy issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, which title insurance policy is generally acceptable to Xxxxxx Xxx and Xxxxxxx Mac. No claims have been filed under such lender's ’s title insurance policy, and the Seller has not done, by act or omission, anything that would impair the coverage of the lender's ’s title insurance policy; ~~(xi) To the best of the Seller’s knowledge, there~~ 14. There is no material default, breach, violation event or event of acceleration existing under the Mortgage or the 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 material default, breach, violation or event of acceleration, and the Seller has not, nor has its predecessors, waived any material default, breach, violation or event of acceleration; ~~(xii) To~~ 15. There are no mechanics’ or similar liens or claims which have been filed for work, labor or material provided to the ~~best~~ related Mortgaged Property prior to the origination of the ~~Seller’s knowledge~~Mortgage Loan which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage, except as may be disclosed in the related title policy; 16. Except with respect to approximately 14.74% of the Mortgage Loans by aggregate principal balance as of the Cut-off Date, which are balloon loans and approximately 12.48% of the Mortgage Loans by aggregate principal balance as of the Cut-off Date, which are interest only loans, each Mortgage Note is payable on the first day of each month in equal monthly installments of principal and interest (subject to adjustment in the case of the adjustable rate Mortgage Loans), with interest calculated on a 30/360 basis and payable in arrears, sufficient to amortize the Mortgage Loan fully by the stated maturity date over an original term from commencement of amortization to not more than thirty (30) years and no Mortgage Loan permits negative ~~amortization or the deferral of accrual interest~~amortization; ~~(xiii) As~~ 17. The servicing practices used in connection with the servicing of the Mortgage Loans have been in all respects reasonable and customary in the mortgage servicing industry of like mortgage loan servicers, servicing mortgage loans similar to the Mortgage Loans in the same jurisdiction as the Mortgaged Property; 18. At the time of origination of the Mortgage Loan there was no proceeding pending for the total or partial condemnation of the Mortgaged Property and, as of the date ~~the~~ such Mortgage Loan was purchased by the ~~Seller~~Purchaser, to the best of the ~~Seller~~Purchaser’s ~~knowledge,~~ knowledge there ~~was~~ is no proceeding pending for the total or partial condemnation of the Mortgaged Property; ~~(xiv) To~~ 19. The Mortgage and related Mortgage Note contain customary and enforceable provisions such as to render the ~~best~~ rights and remedies of the ~~Seller~~holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security provided thereby, including, (a) in the case of a Mortgage designated as a deed of trust, by trustee’s ~~knowledge~~sale, and (b) otherwise by judicial foreclosure; 20. The Mortgage Note is not and has not been secured by any collateral except the lien of the related Mortgage referred to in subsection (x) above; 21. In the event the Mortgage constitutes 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 the Mortgage, and no fees or expenses are or will become payable by the Seller to the trustee under the deed of trust, except in connection with a trustee’s sale after default by the Mortgagor; 22. The Mortgage Loan is not subject to any valid right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, 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 such right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto; ~~(xv) To the best of the Seller’s knowledge, each Mortgage Loan was originated on forms acceptable to FNMA or FHLMC; (xvi)~~ 23. The Mortgaged Property is free of material damage and in good repair, excepting therefrom any Mortgage Loan subject to an escrow withhold as shown on the ~~Closing Schedule and only to the extent of that escrow withhold~~Mortgage Loan Schedule; 24. All of the improvements which were included in determining the appraised value of the Mortgaged Property lie wholly within the Mortgaged Property’s boundary lines and no improvements on adjoining properties encroach upon the Mortgaged Property, excepting therefrom: (~~xvii~~i) any encroachment insured against in the lender’s title insurance policy identified in clause (xiii) above, (ii) any encroachment generally acceptable to mortgage loan originators doing business in the same jurisdiction as the Mortgaged Property, and (iii) any encroachment which does not materially interfere with the benefits of the security intended to be provided by such Mortgage; 25. All parties to the Mortgage Note had the legal capacity to execute the Mortgage Note and the Mortgage, and the Mortgage Note and the Mortgage have been duly executed by such parties; ~~(xviii)~~ 26. To the best of the Seller’s knowledge, at the time of origination of the Mortgage Loan, no appraised improvement located on or being part of the Mortgaged Property was in violation of any applicable zoning law or regulation and ~~to the best of the Seller’s knowledge,~~ all inspections, licenses and certificates required in connection with the origination of any Mortgage Loan with respect to the occupancy of the Mortgaged Property, have been made or obtained from the appropriate authorities; 27. No Mortgagor has notified the Seller of any relief requested or allowed under the Servicemembers Civil Relief Act; 28. All parties which have held an interest in the Mortgage Loan are (~~xix~~or during the period in which they held and disposed of such interest, were) (1) in compliance with any and all applicable licensing requirements of the state wherein the Mortgaged Property is located, (2) organized under the laws of such state, (3) qualified to do business in such state, (4) a federal savings and loan association or national bank, (5) not doing business in such state, or (6) exempt from the applicable licensing requirements of such state; 29. The Mortgage File contains an appraisal of the related Mortgaged Property which ~~satisfied the standards of FNMA and FHLMC and~~ was made prior to the ~~origination~~ approval of the Mortgage Loan by a qualified appraiser, duly appointed by the related originator and was made in accordance with the ~~relevant provisions of the~~ Financial Institutions Reform, Recovery, and Enforcement Act of ~~1989~~1989 and the Uniform Standards of Professional Appraisal Practice; ~~(xx)~~ 30. Except as may otherwise be limited by applicable law, the Mortgage contains an enforceable provision for the acceleration of the payment of the unpaid principal balance of the Mortgage Loan in the event that the Mortgaged Property is sold or transferred without the prior written consent of the Mortgagee thereunder; 31. The Mortgage Loan does not contain any provision which would constitute a “buydown” provision and pursuant to which Monthly Payments are paid or partially paid with funds deposited in a separate account established by the related originator, the Mortgagor or anyone on behalf of the Mortgagor, or paid by any source other than the Mortgagor. The Mortgage Loan is not a “graduated payment mortgage loan” and the Mortgage loan does not have a shared appreciation or other contingent interest feature; 32. To the best of the Seller’s knowledge there is no action or proceeding directly involving the Mortgaged Property presently pending in which compliance with any environmental law, rule or regulation is at issue and the Seller has received no notice of any condition at the Mortgaged Property which is reasonably likely to give rise to an action or proceeding in which compliance with any environmental law, rule or regulation is at issue; 33. Each Mortgage Loan is an obligation which is principally secured by an interest in real property within the meaning of Treasury Regulation section ~~1.860G 2(a~~1.860G-2(a); ~~(xxi)~~ 34. Each Mortgage Loan is directly secured by a first or second lien on, and consists of a single parcel of, real property with a detached one-to-four family residence erected thereon, a townhouse or an individual condominium unit in a condominium project, or an individual unit in a planned unit development (“PUD”). No residence or ~~stock in~~ dwelling is a ~~cooperative housing corporation; (xxii) With respect to any Mortgage Loan with~~ leasehold, mobile home or a manufactured dwelling unless it is an ~~original Loan-to-Value Ratio greater than 80%, the Mortgage Loan will be insured by~~ Acceptable Manufactured Dwelling. An “Acceptable Manufactured Dwelling” is a ~~primary mortgage guaranty insurance policy, issued by an insurer which meets the requirements of FNMA and FHLMC~~manufactured dwelling, which ~~insures that portion of the Mortgage Loan in excess of the portion of the appraised value of~~ is permanently affixed to a foundation and treated as “real estate” under applicable law. No Mortgaged Property is used for commercial purposes. Mortgaged Properties which contain a home office shall not be considered as being used for commercial purposes as long as the Mortgaged Property ~~required by FNMA. All provisions of such primary mortgage guaranty insurance policy have~~ has not been altered for commercial purposes and ~~are being complied with~~is not storing any chemicals or raw materials other than those commonly used for homeowner repair, such policy is in full force and effect, and all premiums due thereunder have been paid. Any Mortgage subject to any such primary mortgage guaranty insurance policy obligates the Mortgagor thereunder to maintain such insurance and to pay all premiums and charges in connection therewith. The Mortgage Interest Rate for the Mortgage Loan does not include any such insurance premiummaintenance and/or household purposes; (xxiii) Each Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority, or by a mortgagee approved by the Secretary of Housing and Urban Development or any successor thereto; (xxiv) No Mortgage Loan is (a) subject to, covered by or in violation of the provisions of the Homeownership and Equity Protection Act of 1994, as amended, (b) a “high cost”, “covered”, “abusive”, “predatory”, or “high risk” mortgage loan (or a similarly designated loan using different terminology) under any federal, state or local law, including without limitation, the provisions of the Georgia Fair Lending Act, New York Banking Law, Section 6-1, the Arkansas Home Loan Protection Act, effective as of June 14, 2003, Kentucky State Statute KRS 360.100, effective as of June 25, 2003 or any other statute or regulation providing assignee liability to holders of such mortgage loans, (c) subject to or in violation of any such or comparable federal, state or local statutes or regulations; (xxv) [Reserved]; (xxvi) No Mortgage Loan is a “High-Cost Home Loan” or a refinanced “Covered Home Loan,” in each case, as defined in the New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46;10B-22 et seq.); (xxvii) No Mortgage Loan is a subsection 10 mortgage under the Oklahoma Home Ownership and Equity protection Act; (xxviii) No Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Nomura Home Equity Loan, Inc., Home Equity Loan Trust, Series 2006-Fm2)

Representations and Warranties of the Seller Relating to the Mortgage Loans. The Seller hereby represents and warrants to the Purchaser that as to each Mortgage Loan as of the Closing ~~Date (unless otherwise set forth herein):~~Date: (i) ~~The information set forth in~~ Information provided to the ~~Closing Schedule~~ Rating Agencies, including the loan level detail, is true and correct ~~in all material respects as of~~ according to the ~~Cut-Off Date~~Rating Agency requirements; (ii) No fraud has taken place on the part of the Mortgagor or any other party involved in the origination or servicing of the Mortgage Loan; (iii) No Monthly Payment required to be made under any Mortgage Loan has ~~been~~ been, or will be, contractually delinquent by one month or more on, or at any time ~~preceding~~ preceding, the date such Mortgage Loan was purchased by the Seller; (~~iii~~iv) To Neither the ~~best~~ Seller nor the related originator of the ~~Seller’s knowledge, there~~ Mortgage Loan has advanced any Monthly Payment required under the terms of the Mortgage Note; (v) There are no delinquent taxes, assessment liens or insurance premiums affecting the related Mortgaged Property; (ivvi) The ~~buildings~~ terms of the Mortgage Note and ~~improvements on~~ the Mortgage have not been materially impaired, waived, altered or modified in any respect, except by written instruments, recorded in the applicable public recording office if necessary to maintain the lien priority of the Mortgage. The substance of any such waiver, alteration or modification has been approved by the title insurer, to the extent required by the related policy. No Mortgagor has been released, in whole or in part, except in connection with an assumption agreement (approved by the title insurer to the extent required by the policy) and which assumption agreement has been delivered to the Trustee; (vii) The Mortgaged Property ~~are~~ is insured against loss by fire and hazards of extended coverage (excluding earthquake insurance) in an amount which is at least equal to the lesser of (i) the amount necessary to compensate for any damage or loss to the improvements which are a part of such property on a replacement cost basis or (ii) the outstanding principal balance of the Mortgage Loan. ~~To the best of the Seller’s knowledge, if~~ If the Mortgaged Property is in an area identified on a flood hazard map or flood insurance rate map issued by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration is in effect. All such insurance policies contain a standard mortgagee clause naming the originator of the Mortgage Loan, its successors and assigns as mortgagee and the Seller has not engaged in any act or omission which would impair the coverage of any such insurance policies. Except as may be limited by applicable law, the Mortgage obligates the Mortgagor thereunder to maintain all such insurance at the Mortgagor's ’s cost and expense, and on the Mortgagor's ’s failure to do so, authorizes the holder of the Mortgage to maintain such insurance at Mortgagor's ’s cost and expense and to seek reimbursement therefor from the Mortgagor; (vviii) ~~Each Mortgage Loan and the related Prepayment Charge complied in all material respects with any~~ 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, ~~predatory and abusive lending,~~ fair housing, predatory, fair lending or disclosure laws applicable to the origination and servicing of ~~Mortgage Loans of a type similar to~~ the Mortgage Loans have been complied with in all material respects, and the consummation of the transactions contemplated hereby will not involve the violation of any such laws; (viix) ~~Except as the Mortgage File may reflect, the~~ The Mortgage has not been satisfied, cancelled, subordinated (other than with respect to second lien Mortgage Loans, the subordination to the first lien) or ~~rescinded~~ rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, cancellation, subordination, rescission or release; (~~vii~~x) The Mortgage was recorded or was submitted for recording in accordance with all applicable laws and is a valid, existing and enforceable perfected first or second lien on the Mortgaged Property including all improvements on the Mortgaged Property, subject only to (a) the lien of the current real property taxes and (b) covenants, conditions and restrictions, rights of way and easements; (~~viii~~xi) The Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, insured under the related title policy, and enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by a bankruptcy, insolvency or reorganization; (ixxii) The Seller is the sole legal, beneficial and equitable owner of the Mortgage Note and the Mortgage and has the full right to convey, transfer and sell the Mortgage Loan to the Purchaser free and clear of any encumbrance, equity, lien (other than with respect to second lien Mortgage Loans, the subordination to the first lien), pledge, charge, claim or security interest and immediately upon the sale, assignment and endorsement of the Mortgage Loans from the Seller to the Purchaser, the Purchaser shall have good and indefeasible title to and be the sole legal owner of the Mortgage Loans subject only to any encumbrance, equity, lien, pledge, charge, claim or security interest arising out of the Purchaser’s actions; (xxiii) Each Mortgage Loan is covered by either (a) an attorney’s opinion of title and abstract of title the form and substance of which is acceptable to mortgage lending institutions making mortgage loans in the area where the Mortgaged Property is located or (b) a valid and binding American Land Title Association lender's ’s title insurance policy issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, which title insurance policy is generally acceptable to Fxxxxx Mxx and Fxxxxxx Mac. No claims have been filed under such lender's ’s title insurance policy, and the Seller has not done, by act or omission, anything that would impair the coverage of the lender's ’s title insurance policy; (xixiv) ~~To the best of the Seller’s knowledge, there~~ There is no material default, breach, violation event or event of acceleration existing under the Mortgage or the 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 material default, breach, violation or event of acceleration, and the Seller has not, nor has its predecessors, waived any material default, breach, violation or event of acceleration; (~~xii~~xv) To There are no mechanics’ or similar liens or claims which have been filed for work, labor or material provided to the ~~best~~ related Mortgaged Property prior to the origination of the ~~Seller’s knowledge~~Mortgage Loan which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage, except as may be disclosed in the related title policy; (xvi) Except with respect to approximately 15.94% of the Mortgage Loans by aggregate principal balance as of the Cut-off Date, which are balloon loans and approximately 19.54% of the Mortgage Loans by aggregate principal balance as of the Cut-off Date, which are interest only loans, each Mortgage Note is payable on the first day of each month in equal monthly installments of principal and interest (subject to adjustment in the case of the adjustable rate Mortgage Loans), with interest calculated on a 30/360 basis and payable in arrears, sufficient to amortize the Mortgage Loan fully by the stated maturity date over an original term from commencement of amortization to not more than thirty (30) years and no Mortgage Loan permits negative ~~amortization or the deferral of accrual interest~~amortization; (~~xiii~~xvii) As The servicing practices used in connection with the servicing of the Mortgage Loans have been in all respects reasonable and customary in the mortgage servicing industry of like mortgage loan servicers, servicing mortgage loans similar to the Mortgage Loans in the same jurisdiction as the Mortgaged Property; (xviii) At the time of origination of the Mortgage Loan there was no proceeding pending for the total or partial condemnation of the Mortgaged Property and, as of the date ~~the~~ such Mortgage Loan was purchased by the ~~Seller~~Purchaser, to the best of the ~~Seller~~Purchaser’s ~~knowledge,~~ knowledge there ~~was~~ is no proceeding pending for the total or partial condemnation of the Mortgaged Property; (~~xiv~~xix) To The Mortgage and related Mortgage Note contain customary and enforceable provisions such as to render the ~~best~~ rights and remedies of the ~~Seller~~holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security provided thereby, including, (a) in the case of a Mortgage designated as a deed of trust, by trustee’s ~~knowledge~~sale, and (b) otherwise by judicial foreclosure; (xx) The Mortgage Note is not and has not been secured by any collateral except the lien of the related Mortgage referred to in subsection (x) above; (xxi) In the event the Mortgage constitutes 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 the Mortgage, and no fees or expenses are or will become payable by the Seller to the trustee under the deed of trust, except in connection with a trustee’s sale after default by the Mortgagor; (xxii) The Mortgage Loan is not subject to any valid right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, 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 such right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto; (~~xv) To the best of the Seller’s knowledge, each Mortgage Loan was originated on forms acceptable to FNMA or FHLMC; (xvi~~xxiii) The Mortgaged Property is free of material damage and in good repair, excepting therefrom any Mortgage Loan subject to an escrow withhold as shown on the ~~Closing Schedule and only to the extent of that escrow withhold~~Mortgage Loan Schedule; (~~xvii~~xxiv) All of the improvements which were included in determining the appraised value of the Mortgaged Property lie wholly within the Mortgaged Property’s boundary lines and no improvements on adjoining properties encroach upon the Mortgaged Property, excepting therefrom: (i) any encroachment insured against in the lender’s title insurance policy identified in clause (xiii) above, (ii) any encroachment generally acceptable to mortgage loan originators doing business in the same jurisdiction as the Mortgaged Property, and (iii) any encroachment which does not materially interfere with the benefits of the security intended to be provided by such Mortgage; (xxv) All parties to the Mortgage Note had the legal capacity to execute the Mortgage Note and the Mortgage, and the Mortgage Note and the Mortgage have been duly executed by such parties; (~~xviii~~xxvi) To the best of the Seller’s knowledge, at the time of origination of the Mortgage Loan, no appraised improvement located on or being part of the Mortgaged Property was in violation of any applicable zoning law or regulation and ~~to the best of the Seller’s knowledge,~~ all inspections, licenses and certificates required in connection with the origination of any Mortgage Loan with respect to the occupancy of the Mortgaged Property, have been made or obtained from the appropriate authorities; (~~xix~~xxvii) No Mortgagor has notified the Seller of any relief requested or allowed under the Servicemembers Civil Relief Act; (xxviii) All parties which have held an interest in the Mortgage Loan are (or during the period in which they held and disposed of such interest, were) (1) in compliance with any and all applicable licensing requirements of the state wherein the Mortgaged Property is located, (2) organized under the laws of such state, (3) qualified to do business in such state, (4) a federal savings and loan association or national bank, (5) not doing business in such state, or (6) exempt from the applicable licensing requirements of such state; (xxix) The Mortgage File contains an appraisal of the related Mortgaged Property which ~~satisfied the standards of FNMA and FHLMC and~~ was made prior to the ~~origination~~ approval of the Mortgage Loan by a qualified appraiser, duly appointed by the related originator and was made in accordance with the ~~relevant provisions of the~~ Financial Institutions Reform, Recovery, and Enforcement Act of ~~1989~~1989 and the Uniform Standards of Professional Appraisal Practice; (xxxxx) Except as may otherwise be limited by applicable law, the Mortgage contains an enforceable provision for the acceleration of the payment of the unpaid principal balance of the Mortgage Loan in the event that the Mortgaged Property is sold or transferred without the prior written consent of the Mortgagee thereunder; (xxxi) The Mortgage Loan does not contain any provision which would constitute a “buydown” provision and pursuant to which Monthly Payments are paid or partially paid with funds deposited in a separate account established by the related originator, the Mortgagor or anyone on behalf of the Mortgagor, or paid by any source other than the Mortgagor. The Mortgage Loan is not a “graduated payment mortgage loan” and the Mortgage loan does not have a shared appreciation or other contingent interest feature; (xxxii) To the best of the Seller’s knowledge there is no action or proceeding directly involving the Mortgaged Property presently pending in which compliance with any environmental law, rule or regulation is at issue and the Seller has received no notice of any condition at the Mortgaged Property which is reasonably likely to give rise to an action or proceeding in which compliance with any environmental law, rule or regulation is at issue; (xxxiii) Each Mortgage Loan is an obligation which is principally secured by an interest in real property within the meaning of Treasury Regulation section ~~1.860G 2(a~~1.860G-2(a); (~~xxi~~xxxiv) Each Mortgage Loan is directly secured by a first or second lien on, and consists of a single parcel of, real property with a detached one-to-four family residence erected thereon, a townhouse or an individual condominium unit in a condominium project, or an individual unit in a planned unit development (“PUD”). No residence or ~~stock in~~ dwelling is a ~~cooperative housing corporation; (xxii) With respect to any Mortgage Loan with~~ leasehold, mobile home or a manufactured dwelling unless it is an ~~original Loan-to-Value Ratio greater than 80%, the Mortgage Loan will be insured by~~ Acceptable Manufactured Dwelling. An “Acceptable Manufactured Dwelling” is a ~~primary mortgage guaranty insurance policy, issued by an insurer which meets the requirements of FNMA and FHLMC~~manufactured dwelling, which ~~insures that portion of the Mortgage Loan in excess of the portion of the appraised value of~~ is permanently affixed to a foundation and treated as “real estate” under applicable law. No Mortgaged Property is used for commercial purposes. Mortgaged Properties which contain a home office shall not be considered as being used for commercial purposes as long as the Mortgaged Property ~~required by FNMA. All provisions of such primary mortgage guaranty insurance policy have~~ has not been altered for commercial purposes and ~~are being complied with~~is not storing any chemicals or raw materials other than those commonly used for homeowner repair, such policy is in full force and effect, and all premiums due thereunder have been paid. Any Mortgage subject to any such primary mortgage guaranty insurance policy obligates the Mortgagor thereunder to maintain such insurance and to pay all premiums and charges in connection therewith. The Mortgage Interest Rate for the Mortgage Loan does not include any such insurance premiummaintenance and/or household purposes; (xxiii) Each Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority, or by a mortgagee approved by the Secretary of Housing and Urban Development or any successor thereto; (xxiv) No Mortgage Loan is (a) subject to, covered by or in violation of the provisions of the Homeownership and Equity Protection Act of 1994, as amended, (b) a “high cost”, “covered”, “abusive”, “predatory”, or “high risk” mortgage loan (or a similarly designated loan using different terminology) under any federal, state or local law, including without limitation, the provisions of the Georgia Fair Lending Act, New York Banking Law, Section 6-1, the Arkansas Home Loan Protection Act, effective as of June 14, 2003, Kentucky State Statute KRS 360.100, effective as of June 25, 2003 or any other statute or regulation providing assignee liability to holders of such mortgage loans, (c) subject to or in violation of any such or comparable federal, state or local statutes or regulations; (xxv) [Reserved]; (xxvi) No Mortgage Loan is a “High-Cost Home Loan” or a refinanced “Covered Home Loan,” in each case, as defined in the New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46;10B-22 et seq.); (xxvii) No Mortgage Loan is a subsection 10 mortgage under the Oklahoma Home Ownership and Equity protection Act; (xxviii) No Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.

Appears in 1 contract

Samples: Mortgage Loan Purchase Agreement (Nomura Home Equity Loan, Inc., Home Equity Loan Trust, Series 2006-He3)

Representations and Warranties of the Seller Relating to the Mortgage Loans. The Seller hereby represents and warrants to the Purchaser that as to each Mortgage Loan as of the Closing ~~Date (unless otherwise set forth herein):~~Date: (i) ~~The information set forth in~~ Information provided to the ~~Closing Schedule~~ Rating Agencies, including the loan level detail, is true and correct ~~in all material respects as of~~ according to the ~~Cut-Off Date~~Rating Agency requirements; (ii) No fraud has taken place on the part of the Mortgagor or any other party involved in the origination or servicing of the Mortgage Loan; (iii) No Monthly Payment required to be made under any Mortgage Loan has ~~been~~ been, or will be, contractually delinquent by one month or more on, or at any time ~~preceding~~ preceding, the date such Mortgage Loan was purchased by the Seller; (~~iii~~iv) To Neither the ~~best~~ Seller nor the related originator of the ~~Seller’s knowledge, there~~ Mortgage Loan has advanced any Monthly Payment required under the terms of the Mortgage Note; (v) There are no delinquent taxes, assessment liens or insurance premiums affecting the related Mortgaged Property; (ivvi) The ~~buildings~~ terms of the Mortgage Note and ~~improvements on~~ the Mortgage have not been materially impaired, waived, altered or modified in any respect, except by written instruments, recorded in the applicable public recording office if necessary to maintain the lien priority of the Mortgage. The substance of any such waiver, alteration or modification has been approved by the title insurer, to the extent required by the related policy. No Mortgagor has been released, in whole or in part, except in connection with an assumption agreement (approved by the title insurer to the extent required by the policy) and which assumption agreement has been delivered to the Trustee; (vii) The Mortgaged Property ~~are~~ is insured against loss by fire and hazards of extended coverage (excluding earthquake insurance) in an amount which is at least equal to the lesser of (i) the amount necessary to compensate for any damage or loss to the improvements which are a part of such property on a replacement cost basis or (ii) the outstanding principal balance of the Mortgage Loan. ~~To the best of the Seller’s knowledge, if~~ If the Mortgaged Property is in an area identified on a flood hazard map or flood insurance rate map issued by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration is in effect. All such insurance policies contain a standard mortgagee clause naming the originator of the Mortgage Loan, its successors and assigns as mortgagee and the Seller has not engaged in any act or omission which would impair the coverage of any such insurance policies. Except as may be limited by applicable law, the Mortgage obligates the Mortgagor thereunder to maintain all such insurance at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to maintain such insurance at Mortgagor's cost and expense and to seek reimbursement therefor from the Mortgagor; (vviii) ~~Each Mortgage Loan and the related Prepayment Charge complied in all material respects with any~~ 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, ~~predatory and abusive lending,~~ fair housing, predatory, abusive lending or disclosure laws applicable to the origination and servicing of ~~Mortgage Loans of a type similar to~~ the Mortgage Loans ~~and the consummation of the transactions contemplated hereby will not involve the violation of any such laws~~have been complied with in all material respects; (viix) ~~Except as the Mortgage File may reflect, the~~ The Mortgage has not been satisfied, cancelled, subordinated or ~~rescinded~~ rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, cancellation, subordination, rescission or release; (~~vii~~x) The Mortgage was recorded or was submitted for recording in accordance with all applicable laws and is a valid, existing and enforceable perfected first lien on the Mortgaged Property including all improvements on the Mortgaged Property, subject only to (a) the lien of the current real property taxes and (b) covenants, conditions and restrictions, rights of way and easements; (~~viii~~xi) The Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, insured under the related title policy, and enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by a bankruptcy, insolvency or reorganization; (ixxii) The Seller is the sole legal, beneficial and equitable owner of the Mortgage Note and the Mortgage and has the full right to convey, transfer and sell the Mortgage Loan to the Purchaser free and clear of any encumbrance, equity, lien, pledge, charge, claim or security interest and immediately upon the sale, assignment and endorsement of the Mortgage Loans from the Seller to the Purchaser, the Purchaser shall have good and indefeasible title to and be the sole legal owner of the Mortgage Loans subject only to any encumbrance, equity, lien, pledge, charge, claim or security interest arising out of the Purchaser’s actions; (xxiii) Each Mortgage Loan is covered by either (a) an attorney’s opinion of title and abstract of title the form and substance of which is acceptable to mortgage lending institutions making mortgage loans in the area where the Mortgaged Property is located or (b) a valid and binding American Land Title Association lender's title insurance policy issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, which title insurance policy is generally acceptable to Xxxxxx Mae and Xxxxxxx Mac. No claims have been filed under such lender's title insurance policy, and the Seller has not done, by act or omission, anything that would impair the coverage of the lender's title insurance policy; (xixiv) ~~To the best of the Seller’s knowledge, there~~ There is no material default, breach, violation event or event of acceleration existing under the Mortgage or the 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 material default, breach, violation or event of acceleration, and the Seller has not, nor has its predecessors, waived any material default, breach, violation or event of acceleration; (~~xii~~xv) To There are no mechanics' or similar liens or claims which have been filed for work, labor or material provided to the ~~best~~ related Mortgaged Property prior to the origination of the ~~Seller’s knowledge~~Mortgage Loan which are or may be liens prior to, no or equal or coordinate with, the lien of the related Mortgage, except as may be disclosed in the related title policy; (xvi) Each Mortgage Note is payable on the first day of each month in equal monthly installments of principal and interest (subject to adjustment in the case of the adjustable rate Mortgage Loans), with interest calculated on a 30/360 basis and payable in arrears, sufficient to amortize the Mortgage Loan fully by the stated maturity date over an original term from commencement of amortization to not more than thirty (30) years. No Mortgage Loan is a balloon loan. No Mortgage Loan permits negative ~~amortization or the deferral of accrual interest~~amortization; (~~xiii~~xvii) As The servicing practices used in connection with the servicing of the Mortgage Loans have been in all respects reasonable and customary in the mortgage servicing industry of like mortgage loan servicers, servicing mortgage loans similar to the Mortgage Loans in the same jurisdiction as the Mortgaged Property; (xviii) At the time of origination of the Mortgage Loan there was no proceeding pending for the total or partial condemnation of the Mortgaged Property and, as of the date ~~the~~ such Mortgage Loan was purchased by the ~~Seller~~Purchaser, to the best of the ~~Seller~~Purchaser’s ~~knowledge,~~ knowledge there ~~was~~ is no proceeding pending for the total or partial condemnation of the Mortgaged Property; (~~xiv~~xix) To The Mortgage and related Mortgage Note contain customary and enforceable provisions such as to render the ~~best~~ rights and remedies of the ~~Seller’s knowledge~~holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security provided thereby, including, (a) in the case of a Mortgage designated as a deed of trust, by trustee's sale, and (b) otherwise by judicial foreclosure; (xx) The Mortgage Note is not and has not been secured by any collateral except the lien of the related Mortgage referred to in subsection (x) above; (xxi) In the event the Mortgage constitutes 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 the Mortgage, and no fees or expenses are or will become payable by the Seller to the trustee under the deed of trust, except in connection with a trustee's sale after default by the Mortgagor; (xxii) The Mortgage Loan is not subject to any valid right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, 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 such right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto; (~~xv) To the best of the Seller’s knowledge, each Mortgage Loan was originated on forms acceptable to FNMA or FHLMC; (xvi~~xxiii) The Mortgaged Property is free of material damage and in good repair, excepting therefrom any Mortgage Loan subject to an escrow withhold as shown on the ~~Closing Schedule and only to the extent of that escrow withhold~~Mortgage Loan Schedule; (~~xvii~~xxiv) All of the improvements which were included in determining the appraised value of the Mortgaged Property lie wholly within the Mortgaged Property's boundary lines and no improvements on adjoining properties encroach upon the Mortgaged Property, excepting therefrom: (i) any encroachment insured against in the lender's title insurance policy identified in clause (xiii) above, (ii) any encroachment generally acceptable to mortgage loan originators doing business in the same jurisdiction as the Mortgaged Property, and (iii) any encroachment which does not materially interfere with the benefits of the security intended to be provided by such Mortgage; (xxv) All parties to the Mortgage Note had the legal capacity to execute the Mortgage Note and the Mortgage, and the Mortgage Note and the Mortgage have been duly executed by such parties; (~~xviii~~xxvi) To the best of the Seller’s knowledge, at the time of origination of the Mortgage Loan, no appraised improvement located on or being part of the Mortgaged Property was in violation of any applicable zoning law or regulation and ~~to the best of the Seller’s knowledge,~~ all inspections, licenses and certificates required in connection with the origination of any Mortgage Loan with respect to the occupancy of the Mortgaged Property, have been made or obtained from the appropriate authorities; (xix) The Mortgage File contains an appraisal of the related Mortgaged Property which satisfied the standards of FNMA and FHLMC and was made prior to the origination of the Mortgage Loan by a qualified appraiser, duly appointed by the related originator and was made in accordance with the relevant provisions of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989; (xx) Each Mortgage Loan is an obligation which is principally secured by an interest in real property within the meaning of Treasury Regulation section 1.860G 2(a); (xxi) Each Mortgage Loan is directly secured by a first lien on, and consists of a single parcel of, real property with a detached one-to-four family residence erected thereon, a townhouse or an individual condominium unit in a condominium project, or an individual unit in a planned unit development or stock in a cooperative housing corporation; (xxii) With respect to any Mortgage Loan with an original Loan-to-Value Ratio greater than 80%, the Mortgage Loan will be insured by a primary mortgage guaranty insurance policy, issued by an insurer which meets the requirements of FNMA and FHLMC, which insures that portion of the Mortgage Loan in excess of the portion of the appraised value of the Mortgaged Property required by FNMA. All provisions of such primary mortgage guaranty insurance policy have been and are being complied with, such policy is in full force and effect, and all premiums due thereunder have been paid. Any Mortgage subject to any such primary mortgage guaranty insurance policy obligates the Mortgagor thereunder to maintain such insurance and to pay all premiums and charges in connection therewith. The Mortgage Interest Rate for the Mortgage Loan does not include any such insurance premium; (xxiii) Each Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority, or by a mortgagee approved by the Secretary of Housing and Urban Development or any successor thereto; (xxiv) No Mortgage Loan is (a) subject to, covered by or in violation of the provisions of the Homeownership and Equity Protection Act of 1994, as amended, (b) a “high cost”, “covered”, “abusive”, “predatory”, or “high risk” mortgage loan (or a similarly designated loan using different terminology) under any federal, state or local law, including without limitation, the provisions of the Georgia Fair Lending Act, New York Banking Law, Section 6-1, the Arkansas Home Loan Protection Act, effective as of June 14, 2003, Kentucky State Statute KRS 360.100, effective as of June 25, 2003 or any other statute or regulation providing assignee liability to holders of such mortgage loans, (c) subject to or in violation of any such or comparable federal, state or local statutes or regulations; (xxv) [Reserved]; (xxvi) No Mortgage Loan is a “High-Cost Home Loan” or a refinanced “Covered Home Loan,” in each case, as defined in the New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46;10B-22 et seq.); (xxvii) No ~~Mortgage Loan is a subsection 10 mortgage~~ Mortgagor has notified the Seller of any relief requested or allowed under the ~~Oklahoma Home Ownership and Equity protection~~ Servicemember’s Civil Relief Act; (xxviii) No All parties which have held an interest in the Mortgage Loan ~~is a “High-Cost Home Loan” as defined~~ are (or during the period in ~~the New Mexico Home Loan Protection Act effective January 1~~which they held and disposed of such interest, ~~2004 (N.M.~~were)

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2006-Ap1)

Representations and Warranties of the Seller Relating to the Mortgage Loans. (a) The Seller hereby represents and warrants to the ~~Purchaser that as~~ Purchaser, with respect to ~~each~~ the Mortgage ~~Loan~~ Loans as of the Closing Date ~~(unless otherwise set forth~~ or as of such date specifically provided herein):: (i1) The information set forth in the ~~Closing~~ related Mortgage Loan Schedule is complete, true and ~~correct in all material respects as of the Cut-Off Date~~correct; (ii2) ~~No Monthly Payment~~ All payments required to be made ~~under any Mortgage Loan has been contractually delinquent by one month or more at any time preceding~~ up to the close of business on the related closing date for such Mortgage Loan ~~was purchased~~ under the terms of the Mortgage Note have been made; the Seller has not advanced funds, or induced, solicited or knowingly received any advance of funds from a party other than the owner of the related Mortgaged Property, directly or indirectly, for the payment of any amount required by the ~~Seller~~Mortgage Note or Mortgage; and there has been no delinquency, exclusive of any period of grace, in any payment by the Mortgagor thereunder since the origination of the Mortgage Loan; (~~iii~~3) ~~To the best of the Seller’s knowledge, there~~ There are no delinquent taxes, ~~assessment liens~~ ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, or ~~insurance premiums~~ other outstanding charges affecting the related Mortgaged Property; (iv4) The terms of the Mortgage Note and the Mortgage have not been impaired, waived, altered or modified in any respect, except by written instruments, recorded in the applicable public recording office if necessary to maintain the lien priority of the Mortgage, and which have been delivered to the Custodian as designeee of the Purchaser; the substance of any such waiver, alteration or modification has been approved by the title insurer, to the extent required by the related policy, and is reflected on the related Mortgage Loan Schedule. No instrument of waiver, alteration or modification has been executed, and no Mortgagor has been released, in whole or in part, except in connection with an assumption agreement approved by the title insurer, to the extent required by the policy, and which assumption agreement has been delivered to the Custodian as designee of the Purchaser and the terms of which are reflected in the related Mortgage Loan Schedule; (5) The Mortgage Note and the Mortgage are not 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 the Mortgage Note and the Mortgage, or the exercise of any right thereunder, render 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, subject to bankruptcy, equitable principles and laws affecting creditors rights. Each Prepayment Charge or penalty with respect to any Mortgage Loan is permissible, enforceable and collectible under applicable federal, state and local law; (6) All buildings ~~and improvements on~~ upon the Mortgaged Property are insured by an insurer in accordance with the underwriting guidelines of the Seller, in effect on the date such Mortgage Loan was originated (the “Underwriting Guidelines”) against loss by ~~fire and~~ fire, hazards of extended coverage ~~(excluding earthquake insurance)~~ and such other hazards as are customary in ~~an amount which~~ the area where the Mortgaged Property is ~~at least equal~~ located, pursuant to insurance policies conforming to the ~~lesser of (i) the amount necessary to compensate for any damage or loss to the improvements which are a part of such property on a replacement cost basis or (ii) the outstanding principal balance~~ requirements of the ~~Mortgage Loan~~Underwriting Guidelines. ~~To the best of~~ All such insurance policies contain a standard mortgagee clause naming the Seller~~’s knowledge~~, if its successors and assigns as mortgagee and all premiums thereon have been paid. If the Mortgaged Property is in an area identified on a ~~flood hazard map~~ Flood Hazard Map or ~~flood insurance rate map~~ Flood Insurance Rate Map issued by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available), ) a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration is in ~~effect~~effect which policy conforms with the Underwriting Guidelines,. All such insurance policies contain a standard mortgagee clause naming the originator of the Mortgage Loan, its successors and assigns as mortgagee and the Seller has not engaged in any act or omission which would impair the coverage of any such insurance policies. Except as may be limited by applicable law, the The Mortgage obligates the Mortgagor thereunder to maintain all such insurance at the Mortgagor's ’s cost and expense, and on the Mortgagor's ’s failure to do so, authorizes the holder of the Mortgage to maintain such insurance at Mortgagor's ’s cost and expense and to seek reimbursement therefor from the Mortgagor; (v) Each Mortgage Loan and the related Prepayment Charge complied in all material respects with 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, predatory and abusive lending, fair housing, or disclosure laws applicable to the origination and servicing of Mortgage Loans of a type similar to the Mortgage Loans and the consummation of the transactions contemplated hereby will not involve the violation of any such laws; (vi) Except as the Mortgage File may reflect, the Mortgage has not been satisfied, cancelled, subordinated or rescinded in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, cancellation, subordination, rescission or release; (vii) The Mortgage was recorded or was submitted for recording in accordance with all applicable laws and is a valid, existing and enforceable first lien on the Mortgaged Property including all improvements on the Mortgaged Property; (viii) The Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, insured under the related title policy, and enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by a bankruptcy, insolvency or reorganization; (ix) The Seller is the sole legal, beneficial and equitable owner of the Mortgage Note and the Mortgage and has the full right to convey, transfer and sell the Mortgage Loan to the Purchaser free and clear of any encumbrance, equity, lien, pledge, charge, claim or security interest and immediately upon the sale, assignment and endorsement of the Mortgage Loans from the Seller to the Purchaser, the Purchaser shall have good and indefeasible title to and be the sole legal owner of the Mortgage Loans subject only to any encumbrance, equity, lien, pledge, charge, claim or security interest arising out of the Purchaser’s actions; (x) Each Mortgage Loan is covered by either (a) an attorney’s opinion of title and abstract of title the form and substance of which is acceptable to mortgage lending institutions making mortgage loans in the area where the Mortgaged Property is located or (b) a valid and binding American Land Title Association lender's title insurance policy issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located. No claims have been filed under such lender's title insurance policy, and the Seller has not done, by act or omission, anything that would impair the coverage of the lender's title insurance policy; (xi) To the best of the Seller’s knowledge, there is no material default, breach, violation event or event of acceleration existing under the Mortgage or the 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 material default, breach, violation or event of acceleration, and the Seller has not, nor has its predecessors, waived any material default, breach, violation or event of acceleration; (xii) To the best of the Seller’s knowledge, no Mortgage Loan permits negative amortization or the deferral of accrual interest; (xiii) As of the date the Mortgage Loan was purchased by the Seller, to the best of the Seller’s knowledge, there was no proceeding pending for the total or partial condemnation of the Mortgaged Property; (xiv) To the best of the Seller’s knowledge, the Mortgage Loan is not subject to any valid right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, 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 such right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto; (xv) To the best of the Seller’s knowledge, each Mortgage Loan was originated on forms acceptable to FNMA or FHLMC; (xvi) The Mortgaged Property is free of material damage and in good repair, excepting therefrom any Mortgage Loan subject to an escrow withhold as shown on the Closing Schedule and only to the extent of that escrow withhold; (xvii) All parties to the Mortgage Note had the legal capacity to execute the Mortgage Note and the Mortgage, and the Mortgage Note and the Mortgage have been duly executed by such parties; (xviii) To the best of the Seller’s knowledge, at the time of origination of the Mortgage Loan, no appraised improvement located on or being part of the Mortgaged Property was in violation of any applicable zoning law or regulation and to the best of the Seller’s knowledge, all inspections, licenses and certificates required in connection with the origination of any Mortgage Loan with respect to the occupancy of the Mortgaged Property, have been made or obtained from the appropriate authorities; (xix) The Mortgage File contains an appraisal of the related Mortgaged Property which satisfied the standards of FNMA and FHLMC and was made prior to the origination of the Mortgage Loan by a qualified appraiser, duly appointed by the related originator and was made in accordance with the relevant provisions of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989; (xx) Each Mortgage Loan is an obligation which is principally secured by an interest in real property within the meaning of Treasury Regulation section 1.860G 2(a); (xxi) Each Mortgage Loan is directly secured by a first lien on, and consists of a single parcel of, real property with a detached one-to-four family residence erected thereon, a townhouse or an individual condominium unit in a condominium project, or an individual unit in a planned unit development or stock in a cooperative housing corporation; (xxii) With respect to any Mortgage Loan with an original Loan-to-Value Ratio greater than 80%, the Mortgage Loan will be insured by a primary mortgage guaranty insurance policy, issued by an insurer which meets the requirements of FNMA and FHLMC, which insures that portion of the Mortgage Loan in excess of the portion of the appraised value of the Mortgaged Property required by FNMA. All provisions of such primary mortgage guaranty insurance policy have been and are being complied with, such policy is in full force and effect, and all premiums due thereunder have been paid. Any Mortgage subject to any such primary mortgage guaranty insurance policy obligates the Mortgagor thereunder to maintain such insurance and to pay all premiums and charges in connection therewith. The Mortgage Interest Rate for the Mortgage Loan does not include any such insurance premium; (xxiii) Each Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority, or by a mortgagee approved by the Secretary of Housing and Urban Development or any successor thereto; (xxiv) No Mortgage Loan is (a) subject to, covered by or in violation of the provisions of the Homeownership and Equity Protection Act of 1994, as amended, (b) a “high cost”, “covered”, “abusive”, “predatory”, or “high risk” mortgage loan (or a similarly designated loan using different terminology) under any federal, state or local law, including without limitation, the provisions of the Georgia Fair Lending Act, New York Banking Law, Section 6-1, the Arkansas Home Loan Protection Act, effective as of June 14, 2003, Kentucky State Statute KRS 360.100, effective as of June 25, 2003 or any other statute or regulation providing assignee liability to holders of such mortgage loans, (c) subject to or in violation of any such or comparable federal, state or local statutes or regulations; (xxv) [Reserved]; (xxvi) No Mortgage Loan is a “High-Cost Home Loan” or a refinanced “Covered Home Loan,” in each case, as defined in the New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46;10B-22 et seq.); (xxvii) No Mortgage Loan is a subsection 10 mortgage under the Oklahoma Home Ownership and Equity protection Act; (xxviii) No Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (GE-WMC Asset-Backed Pass Through Certificates, Series 2005-1)

Representations and Warranties of the Seller Relating to the Mortgage Loans. The Seller hereby represents and warrants to the Purchaser that as to each Mortgage Loan as of the Closing Date (unless otherwise set forth herein): (i) The information set forth in the Closing Schedule is true and correct in all material respects as of the Cut-Off Date; (ii) No Monthly Payment required to be made under any Mortgage Loan has been contractually delinquent by one month or more at any time preceding the date such Mortgage Loan was purchased by the Seller; (iii) To the best of the Seller’s knowledge, there are no delinquent taxes, assessment liens or insurance premiums affecting the related Mortgaged Property; (iv) The buildings and improvements on the Mortgaged Property are insured against loss by fire and hazards of extended coverage (excluding earthquake insurance) in an amount which is at least equal to the lesser of (i) the amount necessary to compensate for any damage or loss to the improvements which are a part of such property on a replacement cost basis or (ii) the outstanding principal balance of the Mortgage Loan. To the best of the Seller’s knowledge, if the Mortgaged Property is in an area identified on a flood hazard map or flood insurance rate map issued by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration is in effect. All such insurance policies contain a standard mortgagee clause naming the originator of the Mortgage Loan, its successors and assigns as mortgagee and the Seller has not engaged in any act or omission which would impair the coverage of any such insurance policies. Except as may be limited by applicable law, the Mortgage obligates the Mortgagor thereunder to maintain all such insurance at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to maintain such insurance at Mortgagor's cost and expense and to seek reimbursement therefor from the Mortgagor; (v) Each Mortgage Loan ~~and the related Prepayment Charge~~ complied in all material respects with 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, predatory and abusive lending, fair housing, or disclosure laws applicable to the origination and servicing of Mortgage Loans of a type similar to the Mortgage Loans and the consummation of the transactions contemplated hereby will not involve the violation of any such laws; (vi) Except as the Mortgage File may reflect, the Mortgage has not been satisfied, cancelled, subordinated or rescinded in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, cancellation, subordination, rescission or release; (vii) The Mortgage was recorded or was submitted for recording in accordance with all applicable laws and is a valid, existing and enforceable first lien on the Mortgaged Property including all improvements on the Mortgaged Property; (viii) The Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, insured under the related title policy, and enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by a bankruptcy, insolvency or reorganization; (ix) The Seller is the sole legal, beneficial and equitable owner of the Mortgage Note and the Mortgage and has the full right to convey, transfer and sell the Mortgage Loan to the Purchaser free and clear of any encumbrance, equity, lien, pledge, charge, claim or security interest and immediately upon the sale, assignment and endorsement of the Mortgage Loans from the Seller to the Purchaser, the Purchaser shall have good and indefeasible title to and be the sole legal owner of the Mortgage Loans subject only to any encumbrance, equity, lien, pledge, charge, claim or security interest arising out of the Purchaser’s actions; (x) Each Mortgage Loan is covered by either (a) an attorney’s opinion of title and abstract of title the form and substance of which is acceptable to mortgage lending institutions making mortgage loans in the area where the Mortgaged Property is located or (b) a valid and binding American Land Title Association lender's title insurance policy issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located. No claims have been filed under such lender's title insurance policy, and the Seller has not done, by act or omission, anything that would impair the coverage of the lender's title insurance policy; (xi) To the best of the Seller’s knowledge, there is no material default, breach, violation event or event of acceleration existing under the Mortgage or the 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 material default, breach, violation or event of acceleration, and the Seller has not, nor has its predecessors, waived any material default, breach, violation or event of acceleration; (xii) ~~To the best of the Seller’s knowledge, no Mortgage Loan permits negative amortization or the deferral of accrual interest; (xiii)~~ As of the date the Mortgage Loan was purchased by the Seller, to the best of the Seller’s knowledge, there was no proceeding pending for the total or partial condemnation of the Mortgaged Property; (~~xiv~~xiii) To the best of the Seller’s knowledge, the Mortgage Loan is not subject to any valid right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, 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 such right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto; (xvxiv) To the best of the Seller’s knowledge, each Mortgage Loan was originated on forms acceptable to ~~FNMA~~ Xxxxxx Xxx or ~~FHLMC~~Xxxxxxx Mac; (~~xvi~~xv) The Mortgaged Property is free of material damage and ~~in good repair~~waste, excepting therefrom any Mortgage Loan subject to an escrow withhold as shown on the Closing Schedule and only to the extent of that escrow withhold; (~~xvii~~xvi) All parties to the Mortgage Note had the legal capacity to execute the Mortgage Note and the Mortgage, and the Mortgage Note and the Mortgage have been duly executed by such parties; (~~xviii~~xvii) To the best of the Seller’s knowledge, at the time of origination of the Mortgage Loan, no appraised improvement located on or being part of the Mortgaged Property was in violation of any applicable zoning law or regulation and to the best of the Seller’s knowledge, all inspections, licenses and certificates required in connection with the origination of any Mortgage Loan with respect to the occupancy of the Mortgaged Property, have been made or obtained from the appropriate authorities; (~~xix~~xviii) The Mortgage File contains an appraisal of the related Mortgaged Property which satisfied the standards of ~~FNMA~~ Xxxxxx Mae and ~~FHLMC~~ Xxxxxxx Mac and was made prior to the origination of the Mortgage Loan by a qualified appraiser, duly appointed by the related originator and was made in accordance with the relevant provisions of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989; (xxxix) Each Mortgage Loan is an obligation which is principally secured by an interest in real property within the meaning of Treasury Regulation section 1.860G 2(a); (~~xxi~~xx) Each Mortgage Loan is directly secured by a first lien on, and consists of a single parcel of, real property with a detached one-to-four family residence erected thereon, a townhouse or an individual condominium unit in a condominium project, or an individual unit in a planned unit development ~~or stock in a cooperative housing corporation~~(“PUD”); (xxi) [Reserved]; (xxii) With respect to any Mortgage Loan with an original Loan-to-Value Ratio greater than 80%, the Mortgage Loan will be insured by a primary mortgage guaranty insurance policy, issued by an insurer which meets the requirements of FNMA and FHLMC, which insures that portion of the Mortgage Loan in excess of the portion of the appraised value of the Mortgaged Property required by FNMA. All provisions of such primary mortgage guaranty insurance policy have been and are being complied with, such policy is in full force and effect, and all premiums due thereunder have been paid. Any Mortgage subject to any such primary mortgage guaranty insurance policy obligates the Mortgagor thereunder to maintain such insurance and to pay all premiums and charges in connection therewith. The Mortgage Interest Rate for the Mortgage Loan does not include any such insurance premium; (xxiii) Each Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority, or by a mortgagee approved by the Secretary of Housing and Urban Development or any successor thereto; (~~xxiv~~xxiii) No Mortgage Loan is (a) subject to, covered by or in violation of the provisions of the Homeownership and Equity Protection Act of 1994, as amended, (b) a “high cost”, “covered”, “abusive”, “predatory”, or “high risk” mortgage loan (or a similarly designated loan using different terminology) under any federal, state or local law, including without limitation, the provisions of the Georgia Fair Lending Act, New York Banking Law, Section 6-1, the Arkansas Home Loan Protection Act, effective as of June 14, 2003, Kentucky State Statute KRS 360.100, effective as of June 25, 2003 or any other statute or regulation providing assignee liability to holders of such mortgage loans, (c) subject to or in violation of any such or comparable federal, state or local statutes or regulations; (~~xxv~~xxiv) [Reserved]; (~~xxvi~~xxv) No Mortgage Loan is a “High-Cost Home Loan” or a refinanced “Covered Home Loan,” in each case, as defined in the New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46;10B-22 et seq.); (~~xxvii~~xxvi) No Mortgage Loan is a subsection 10 mortgage under the Oklahoma Home Ownership and Equity protection Act; (~~xxviii~~xxvii) No Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (MortgageIT Securities Corp. Mortgage Loan Trust, Series 2007-2)

Representations and Warranties of the Seller Relating to the Mortgage Loans. The Seller hereby represents and warrants to the Purchaser that as to each Mortgage Loan as of the Closing ~~Date (unless otherwise set forth herein):~~Date: (i) ~~The information set forth in~~ Information provided to the ~~Closing Schedule~~ Rating Agencies, including the loan level detail, is true and correct ~~in all material respects as of~~ according to the ~~Cut-Off Date~~Rating Agency requirements; (ii) No fraud has taken place on the part of the Mortgagor or any other party involved in the origination or servicing of the Mortgage Loan; (iii) No Monthly Payment required to be made under any Mortgage Loan has ~~been~~ been, or will be, contractually delinquent by one month or more on, or at any time ~~preceding~~ preceding, the date such Mortgage Loan was purchased by the Seller; (~~iii~~iv) To Neither the ~~best~~ Seller nor the related originator of the ~~Seller’s knowledge, there~~ Mortgage Loan has advanced any Monthly Payment required under the terms of the Mortgage Note; (v) There are no delinquent taxes, assessment liens or insurance premiums affecting the related Mortgaged Property; (ivvi) The ~~buildings~~ terms of the Mortgage Note and ~~improvements on~~ the Mortgage have not been materially impaired, waived, altered or modified in any respect, except by written instruments, recorded in the applicable public recording office if necessary to maintain the lien priority of the Mortgage. The substance of any such waiver, alteration or modification has been approved by the title insurer, to the extent required by the related policy. No Mortgagor has been released, in whole or in part, except in connection with an assumption agreement (approved by the title insurer to the extent required by the policy) and which assumption agreement has been delivered to the Trustee; (vii) The Mortgaged Property ~~are~~ is insured against loss by fire and hazards of extended coverage (excluding earthquake insurance) in an amount which is at least equal to the lesser of (i) the amount necessary to compensate for any damage or loss to the improvements which are a part of such property on a replacement cost basis or (ii) the outstanding principal balance of the Mortgage Loan. ~~To the best of the Seller’s knowledge, if~~ If the Mortgaged Property is in an area identified on a flood hazard map or flood insurance rate map issued by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration is in effect. All such insurance policies contain a standard mortgagee clause naming the originator of the Mortgage Loan, its successors and assigns as mortgagee and the Seller has not engaged in any act or omission which would impair the coverage of any such insurance policies. Except as may be limited by applicable law, the Mortgage obligates the Mortgagor thereunder to maintain all such insurance at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to maintain such insurance at Mortgagor's cost and expense and to seek reimbursement therefor from the Mortgagor; (vviii) ~~Each Mortgage Loan and the related Prepayment Charge complied in all material respects with any~~ 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, ~~predatory and abusive lending,~~ fair housing, predatory, abusive lending or disclosure laws applicable to the origination and servicing of ~~Mortgage Loans of a type similar to~~ the Mortgage Loans ~~and the consummation of the transactions contemplated hereby will not involve the violation of any such laws~~have been complied with in all material respects; (viix) ~~Except as the Mortgage File may reflect, the~~ The Mortgage has not been satisfied, cancelled, subordinated or ~~rescinded~~ rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, cancellation, subordination, rescission or release; (~~vii~~x) The Mortgage was recorded or was submitted for recording in accordance with all applicable laws and is a valid, existing and enforceable perfected first lien on the Mortgaged Property including all improvements on the Mortgaged Property, subject only to (a) the lien of the current real property taxes and (b) covenants, conditions and restrictions, rights of way and easements; (~~viii~~xi) The Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, insured under the related title policy, and enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by a bankruptcy, insolvency or reorganization; (ixxii) The Seller is the sole legal, beneficial and equitable owner of the Mortgage Note and the Mortgage and has the full right to convey, transfer and sell the Mortgage Loan to the Purchaser free and clear of any encumbrance, equity, lien, pledge, charge, claim or security interest and immediately upon the sale, assignment and endorsement of the Mortgage Loans from the Seller to the Purchaser, the Purchaser shall have good and indefeasible title to and be the sole legal owner of the Mortgage Loans subject only to any encumbrance, equity, lien, pledge, charge, claim or security interest arising out of the Purchaser’s actions; (xxiii) Each Mortgage Loan is covered by either (a) an attorney’s opinion of title and abstract of title the form and substance of which is acceptable to mortgage lending institutions making mortgage loans in the area where the Mortgaged Property is located or (b) a valid and binding American Land Title Association lender's title insurance policy issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, which title insurance policy is generally acceptable to Xxxxxx Xxx and Xxxxxxx Mac. No claims have been filed under such lender's title insurance policy, and the Seller has not done, by act or omission, anything that would impair the coverage of the lender's title insurance policy; (xixiv) ~~To the best of the Seller’s knowledge, there~~ There is no material default, breach, violation event or event of acceleration existing under the Mortgage or the 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 material default, breach, violation or event of acceleration, and the Seller has not, nor has its predecessors, waived any material default, breach, violation or event of acceleration; (~~xii~~xv) To There are no mechanics' or similar liens or claims which have been filed for work, labor or material provided to the ~~best~~ related Mortgaged Property prior to the origination of the ~~Seller’s knowledge~~Mortgage Loan which are or may be liens prior to, no or equal or coordinate with, the lien of the related Mortgage, except as may be disclosed in the related title policy; (xvi) Each Mortgage Note is payable on the first day of each month in equal monthly installments of principal and interest (subject to adjustment in the case of the adjustable rate Mortgage Loans), with interest calculated on a 30/360 basis and payable in arrears, sufficient to amortize the Mortgage Loan fully by the stated maturity date over an original term from commencement of amortization to not more than thirty (30) years. No Mortgage Loan is a balloon loan. No Mortgage Loan permits negative ~~amortization or the deferral of accrual interest~~amortization; (~~xiii~~xvii) As The servicing practices used in connection with the servicing of the Mortgage Loans have been in all respects reasonable and customary in the mortgage servicing industry of like mortgage loan servicers, servicing mortgage loans similar to the Mortgage Loans in the same jurisdiction as the Mortgaged Property; (xviii) At the time of origination of the Mortgage Loan there was no proceeding pending for the total or partial condemnation of the Mortgaged Property and, as of the date ~~the~~ such Mortgage Loan was purchased by the ~~Seller~~Purchaser, to the best of the ~~Seller~~Purchaser’s ~~knowledge,~~ knowledge there ~~was~~ is no proceeding pending for the total or partial condemnation of the Mortgaged Property; (~~xiv~~xix) To The Mortgage and related Mortgage Note contain customary and enforceable provisions such as to render the ~~best~~ rights and remedies of the ~~Seller’s knowledge~~holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security provided thereby, including, (a) in the case of a Mortgage designated as a deed of trust, by trustee's sale, and (b) otherwise by judicial foreclosure; (xx) The Mortgage Note is not and has not been secured by any collateral except the lien of the related Mortgage referred to in subsection (x) above; (xxi) In the event the Mortgage constitutes 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 the Mortgage, and no fees or expenses are or will become payable by the Seller to the trustee under the deed of trust, except in connection with a trustee's sale after default by the Mortgagor; (xxii) The Mortgage Loan is not subject to any valid right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, 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 such right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto; (~~xv) To the best of the Seller’s knowledge, each Mortgage Loan was originated on forms acceptable to FNMA or FHLMC; (xvi~~xxiii) The Mortgaged Property is free of material damage and in good repair, excepting therefrom any Mortgage Loan subject to an escrow withhold as shown on the ~~Closing Schedule and only to the extent of that escrow withhold~~Mortgage Loan Schedule; (~~xvii~~xxiv) All of the improvements which were included in determining the appraised value of the Mortgaged Property lie wholly within the Mortgaged Property's boundary lines and no improvements on adjoining properties encroach upon the Mortgaged Property, excepting therefrom: (i) any encroachment insured against in the lender's title insurance policy identified in clause (xiii) above, (ii) any encroachment generally acceptable to mortgage loan originators doing business in the same jurisdiction as the Mortgaged Property, and (iii) any encroachment which does not materially interfere with the benefits of the security intended to be provided by such Mortgage; (xxv) All parties to the Mortgage Note had the legal capacity to execute the Mortgage Note and the Mortgage, and the Mortgage Note and the Mortgage have been duly executed by such parties; (~~xviii~~xxvi) To the best of the Seller’s knowledge, at the time of origination of the Mortgage Loan, no appraised improvement located on or being part of the Mortgaged Property was in violation of any applicable zoning law or regulation and ~~to the best of the Seller’s knowledge,~~ all inspections, licenses and certificates required in connection with the origination of any Mortgage Loan with respect to the occupancy of the Mortgaged Property, have been made or obtained from the appropriate authorities; (~~xix~~xxvii) No Mortgagor has notified the Seller of any relief requested or allowed under the Servicemember’s Civil Relief Act; (xxviii) All parties which have held an interest in the Mortgage Loan are (or during the period in which they held and disposed of such interest, were) (1) in compliance with any and all applicable licensing requirements of the state wherein the Mortgaged Property is located, (2) organized under the laws of such state, (3) qualified to do business in such state, (4) a federal savings and loan association or national bank, (5) not doing business in such state, or (6) exempt from the applicable licensing requirements of such state; (xxix) The Mortgage File contains an appraisal of the related Mortgaged Property which ~~satisfied the standards of FNMA and FHLMC and~~ was made prior to the ~~origination~~ approval of the Mortgage Loan by a qualified appraiser, duly appointed by the related originator and was made in accordance with the ~~relevant provisions of the~~ Financial Institutions Reform, Recovery, and Enforcement Act of ~~1989~~1989 and the Uniform Standards of Professional Appraisal Practice; (xxxxx) Except as may otherwise be limited by applicable law, the Mortgage contains an enforceable provision for the acceleration of the payment of the unpaid principal balance of the Mortgage Loan in the event that the Mortgaged Property is sold or transferred without the prior written consent of the Mortgagee thereunder; (xxxi) The Mortgage Loan does not contain any provision which would constitute a “buydown” provision and pursuant to which Monthly Payments are paid or partially paid with funds deposited in a separate account established by the related originator, the Mortgagor or anyone on behalf of the Mortgagor, or paid by any source other than the Mortgagor. The Mortgage Loan is not a “graduated payment mortgage loan” and the Mortgage loan does not have a shared appreciation or other contingent interest feature; (xxxii) To the best of the Seller's knowledge there is no action or proceeding directly involving the Mortgaged Property presently pending in which compliance with any environmental law, rule or regulation is at issue and the Seller has received no notice of any condition at the Mortgaged Property which is reasonably likely to give rise to an action or proceeding in which compliance with any environmental law, rule or regulation is at issue; (xxxiii) Each Mortgage Loan is an obligation which is principally secured by an interest in real property within the meaning of Treasury Regulation section ~~1.860G 2(a~~1.860G-2(a); (~~xxi~~xxxiv) Each Mortgage Loan is directly secured by a first lien on, and consists of a single parcel of, real property with a detached one-to-four family residence erected thereon, a townhouse or an individual condominium unit in a condominium project, or an individual unit in a planned unit development (“PUD”). No residence or ~~stock in~~ dwelling is a ~~cooperative housing corporation; (xxii) With respect to any Mortgage Loan with~~ leasehold, mobile home or a manufactured dwelling unless it is an ~~original Loan-to-Value Ratio greater than 80%, the Mortgage Loan will be insured by~~ Acceptable Manufactured Dwelling. An “Acceptable Manufactured Dwelling” is a ~~primary mortgage guaranty insurance policy, issued by an insurer which meets the requirements of FNMA and FHLMC~~manufactured dwelling, which ~~insures that portion of the Mortgage Loan in excess of the portion of the appraised value of~~ is permanently affixed to a foundation and treated as “real estate” under applicable law. No Mortgaged Property is used for commercial purposes. Mortgaged Properties which contain a home office shall not be considered as being used for commercial purposes as long as the Mortgaged Property ~~required by FNMA. All provisions of such primary mortgage guaranty insurance policy have~~ has not been altered for commercial purposes and ~~are being complied with~~is not storing any chemicals or raw materials other than those commonly used for homeowner repair, such policy is in full force and effect, and all premiums due thereunder have been paid. Any Mortgage subject to any such primary mortgage guaranty insurance policy obligates the Mortgagor thereunder to maintain such insurance and to pay all premiums and charges in connection therewith. The Mortgage Interest Rate for the Mortgage Loan does not include any such insurance premiummaintenance and/or household purposes; (xxiii) Each Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority, or by a mortgagee approved by the Secretary of Housing and Urban Development or any successor thereto; (xxiv) No Mortgage Loan is (a) subject to, covered by or in violation of the provisions of the Homeownership and Equity Protection Act of 1994, as amended, (b) a “high cost”, “covered”, “abusive”, “predatory”, or “high risk” mortgage loan (or a similarly designated loan using different terminology) under any federal, state or local law, including without limitation, the provisions of the Georgia Fair Lending Act, New York Banking Law, Section 6-1, the Arkansas Home Loan Protection Act, effective as of June 14, 2003, Kentucky State Statute KRS 360.100, effective as of June 25, 2003 or any other statute or regulation providing assignee liability to holders of such mortgage loans, (c) subject to or in violation of any such or comparable federal, state or local statutes or regulations; (xxv) [Reserved]; (xxvi) No Mortgage Loan is a “High-Cost Home Loan” or a refinanced “Covered Home Loan,” in each case, as defined in the New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46;10B-22 et seq.); (xxvii) No Mortgage Loan is a subsection 10 mortgage under the Oklahoma Home Ownership and Equity protection Act; (xxviii) No Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2006-Ar1)

Representations and Warranties of the Seller Relating to the Mortgage Loans. The Seller hereby represents and warrants to the Purchaser that as to each Mortgage Loan as of the Closing ~~Date (unless otherwise set forth herein):~~Date: (i) ~~The information~~ Information provided to the Rating Agencies, including the loan level detail set forth in on the ~~Closing Schedule~~ Mortgage Loan Schedule, is true and correct ~~in all material respects as of~~ according to the ~~Cut-Off Date~~Rating Agency requirements; (ii) No fraud has taken place on the part of the Mortgagor or any other party involved in the origination or servicing of the Mortgage Loan; (iii) No Monthly Payment required to be made under any Mortgage Loan ~~has been contractually delinquent by one month or~~ is more ~~at any time preceding the date such Mortgage Loan was purchased by the Seller~~than thirty (30) days delinquent; (~~iii~~iv) To Neither the ~~best~~ Seller nor the related originator of the ~~Seller’s knowledge, there~~ Mortgage Loan has advanced any Monthly Payment required under the terms of the Mortgage Note; (v) There are no delinquent taxes, assessment liens or insurance premiums affecting the related Mortgaged Property; (ivvi) The ~~buildings~~ terms of the Mortgage Note and ~~improvements on~~ the Mortgage have not been materially impaired, waived, altered or modified in any respect, except by written instruments, recorded in the applicable public recording office if necessary to maintain the lien priority of the Mortgage. The substance of any such waiver, alteration or modification has been approved by the title insurer, to the extent required by the related policy. No Mortgagor has been released, in whole or in part, except in connection with an assumption agreement (approved by the title insurer to the extent required by the policy); (vii) The Mortgaged Property ~~are~~ is insured against loss by fire and hazards of extended coverage (excluding earthquake insurance) in an amount which is at least equal to the lesser of (i) the amount necessary to compensate for any damage or loss to the improvements which are a part of such property on a replacement cost basis or (ii) the outstanding principal balance of the Mortgage Loan. ~~To the best of the Seller’s knowledge, if~~ If the Mortgaged Property is in an area identified on a flood hazard map or flood insurance rate map issued by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration is in effect. All such insurance policies contain a standard mortgagee clause naming the originator of the Mortgage Loan, its successors and assigns as mortgagee and the Seller has not engaged in any act or omission which would impair the coverage of any such insurance policies. Except as may be limited by applicable law, the Mortgage obligates the Mortgagor thereunder to maintain all such insurance at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to maintain such insurance at Mortgagor's cost and expense and to seek reimbursement therefor from the Mortgagor; (vviii) ~~Each Mortgage Loan and the related Prepayment Charge complied in all material respects with any~~ 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, ~~predatory and abusive lending,~~ fair housing, predatory, fair lending or disclosure laws applicable to the origination and servicing of ~~Mortgage Loans of a type similar to~~ the Mortgage Loans have been complied with in all material respects, and the consummation of the transactions contemplated hereby will not involve the violation of any such laws; (viix) ~~Except as the Mortgage File may reflect, the~~ The Mortgage has not been satisfied, cancelled, subordinated or ~~rescinded~~ rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, cancellation, subordination, rescission or release; (~~vii~~x) The Mortgage was recorded or was submitted for recording in accordance with all applicable laws and is a valid, existing and enforceable perfected first lien on the Mortgaged Property including all improvements on the Mortgaged Property, subject only to (a) the lien of the current real property taxes and (b) covenants, conditions and restrictions, rights of way and easements; (~~viii~~xi) The Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, insured under the related title policy, and enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by a bankruptcy, insolvency or reorganization; (ixxii) The Seller is the sole legal, beneficial and equitable owner of the Mortgage Note and the Mortgage and has the full right to convey, transfer and sell the Mortgage Loan to the Purchaser free and clear of any encumbrance, equity, lien, pledge, charge, claim or security interest and immediately upon the sale, assignment and endorsement of the Mortgage Loans from the Seller to the Purchaser, the Purchaser shall have good and indefeasible title to and be the sole legal owner of the Mortgage Loans subject only to any encumbrance, equity, lien, pledge, charge, claim or security interest arising out of the Purchaser’s actions; (xxiii) Each Mortgage Loan is covered by either (a) an attorney’s opinion of title and abstract of title the form and substance of which is acceptable to mortgage lending institutions making mortgage loans in the area where the Mortgaged Property is located or (b) a valid and binding American Land Title Association lender's title insurance policy issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, which title insurance policy is generally acceptable to Xxxxxx Xxx and Xxxxxxx Mac. No claims have been filed under such lender's title insurance policy, and the Seller has not done, by act or omission, anything that would impair the coverage of the lender's title insurance policy; (xixiv) ~~To the best of the Seller’s knowledge, there~~ There is no material default, breach, violation event or event of acceleration existing under the Mortgage or the 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 material default, breach, violation or event of acceleration, and the Seller has not, nor has its predecessors, waived any material default, breach, violation or event of acceleration; (~~xii~~xv) There are no mechanics' or similar liens or claims which have been filed for work, labor or material provided to the related Mortgaged Property prior to the origination of the Mortgage Loan which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage, except as may be disclosed in the related title policy; (xvi) Except with respect to approximately 8.70% of the Group I Mortgage Loans and approximately 4.15% of the Group II Mortgage Loans, by aggregate principal balance as of the Cut-off Date, which are balloon loans and approximately 41.94% of the Group I Mortgage Loans and approximately 84.47% of the Group II Mortgage Loans by aggregate principal balance as of the Cut-off Date, which are interest only loans, each Mortgage Note is payable on the first day of each month in equal monthly installments of principal and interest (subject to adjustment in the case of the adjustable rate Mortgage Loans), with interest calculated on a 30/360 basis and payable in arrears, sufficient to amortize the Mortgage Loan fully by the stated maturity date over an original term from commencement of amortization to not more than forty (40) years. No Mortgage Loan permits negative amortization; (xvii) The servicing practices used in connection with the servicing of the Mortgage Loans have been in all respects reasonable and customary in the mortgage servicing industry of like mortgage loan servicers, servicing mortgage loans similar to the Mortgage Loans in the same jurisdiction as the Mortgaged Property; (xviii) To the best of the Seller’s knowledge, ~~no Mortgage Loan permits negative amortization or the deferral of accrual interest; (xiii) As of the date the Mortgage Loan was purchased by the Seller, to the best of the Seller’s knowledge,~~ there ~~was~~ is no proceeding pending for the total or partial condemnation of the Mortgaged Property; (~~xiv~~xix) To The Mortgage and related Mortgage Note contain customary and enforceable provisions such as to render the ~~best~~ rights and remedies of the ~~Seller’s knowledge~~holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security provided thereby, including, (a) in the case of a Mortgage designated as a deed of trust, by trustee's sale, and (b) otherwise by judicial foreclosure; (xx) The Mortgage Note is not and has not been secured by any collateral except the lien of the related Mortgage referred to in subsection (x) above; (xxi) In the event the Mortgage constitutes 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 the Mortgage, and no fees or expenses are or will become payable by the Seller to the trustee under the deed of trust, except in connection with a trustee's sale after default by the Mortgagor; (xxii) The Mortgage Loan is not subject to any valid right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, 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 such right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto; (~~xv) To the best of the Seller’s knowledge, each Mortgage Loan was originated on forms acceptable to FNMA or FHLMC; (xvi~~xxiii) The Mortgaged Property is free of material damage and in good repair, excepting therefrom any Mortgage Loan subject to an escrow withhold as shown on the ~~Closing Schedule and only to the extent of that escrow withhold~~Mortgage Loan Schedule; (~~xvii~~xxiv) All of the improvements which were included in determining the appraised value of the Mortgaged Property lie wholly within the Mortgaged Property's boundary lines and no improvements on adjoining properties encroach upon the Mortgaged Property, excepting therefrom: (i) any encroachment insured against in the lender's title insurance policy identified in clause (xiii) above, (ii) any encroachment generally acceptable to mortgage loan originators doing business in the same jurisdiction as the Mortgaged Property, and (iii) any encroachment which does not materially interfere with the benefits of the security intended to be provided by such Mortgage; (xxv) All parties to the Mortgage Note had the legal capacity to execute the Mortgage Note and the Mortgage, and the Mortgage Note and the Mortgage have been duly executed by such parties; (~~xviii~~xxvi) To the best of the Seller’s knowledge, at the time of origination of the Mortgage Loan, no appraised improvement located on or being part of the Mortgaged Property was in violation of any applicable zoning law or regulation and ~~to the best of the Seller’s knowledge,~~ all inspections, licenses and certificates required in connection with the origination of any Mortgage Loan with respect to the occupancy of the Mortgaged Property, have been made or obtained from the appropriate authorities; (~~xix~~xxvii) No Mortgagor has notified the Seller of any relief requested or allowed under the Servicemembers Civil Relief Act; (xxviii) All parties which have held an interest in the Mortgage Loan are (or during the period in which they held and disposed of such interest, were) (1) in compliance with any and all applicable licensing requirements of the state wherein the Mortgaged Property is located, (2) organized under the laws of such state, (3) qualified to do business in such state, (4) a federal savings and loan association or national bank, (5) not doing business in such state, or (6) exempt from the applicable licensing requirements of such state; (xxix) The Mortgage File contains an appraisal of the related Mortgaged Property which ~~satisfied the standards of FNMA and FHLMC and~~ was made prior to the ~~origination~~ approval of the Mortgage Loan by a qualified appraiser, duly appointed by the related originator and was made in accordance with the ~~relevant provisions of the~~ Financial Institutions Reform, Recovery, and Enforcement Act of ~~1989~~1989 and the Uniform Standards of Professional Appraisal Practice; (xxxxx) Except as may otherwise be limited by applicable law, the Mortgage contains an enforceable provision for the acceleration of the payment of the unpaid principal balance of the Mortgage Loan in the event that the Mortgaged Property is sold or transferred without the prior written consent of the Mortgagee thereunder; (xxxi) The Mortgage Loan does not contain any provision which would constitute a “buydown” provision and pursuant to which Monthly Payments are paid or partially paid with funds deposited in a separate account established by the related originator, the Mortgagor or anyone on behalf of the Mortgagor, or paid by any source other than the Mortgagor. The Mortgage Loan is not a “graduated payment mortgage loan” and the Mortgage loan does not have a shared appreciation or other contingent interest feature; (xxxii) To the best of the Seller’s knowledge there is no action or proceeding directly involving the Mortgaged Property presently pending in which compliance with any environmental law, rule or regulation is at issue and the Seller has received no notice of any condition at the Mortgaged Property which is reasonably likely to give rise to an action or proceeding in which compliance with any environmental law, rule or regulation is at issue; (xxxiii) Each Mortgage Loan is an obligation which is principally secured by an interest in real property within the meaning of Treasury Regulation section ~~1.860G 2(a~~1.860G-2(a); (~~xxi~~xxxiv) Each Mortgage Loan is directly secured by a first lien on, and consists of a single parcel of, real property with a detached one-to-four family residence erected thereon, a townhouse or an individual condominium unit in a condominium project, or an individual unit in a planned unit development (“PUD”). No residence or ~~stock in~~ dwelling is a ~~cooperative housing corporation; (xxii) With respect to any Mortgage Loan with~~ leasehold, mobile home or a manufactured dwelling unless it is an ~~original Loan-to-Value Ratio greater than 80%, the Mortgage Loan will be insured by~~ Acceptable Manufactured Dwelling. An “Acceptable Manufactured Dwelling” is a ~~primary mortgage guaranty insurance policy, issued by an insurer which meets the requirements of FNMA and FHLMC~~manufactured dwelling, which ~~insures that portion of the Mortgage Loan in excess of the portion of the appraised value of~~ is permanently affixed to a foundation and treated as “real estate” under applicable law. No Mortgaged Property is used for commercial purposes. Mortgaged Properties which contain a home office shall not be considered as being used for commercial purposes as long as the Mortgaged Property ~~required by FNMA. All provisions of such primary mortgage guaranty insurance policy have~~ has not been altered for commercial purposes and ~~are being complied with~~is not storing any chemicals or raw materials other than those commonly used for homeowner repair, such policy is in full force and effect, and all premiums due thereunder have been paid. Any Mortgage subject to any such primary mortgage guaranty insurance policy obligates the Mortgagor thereunder to maintain such insurance and to pay all premiums and charges in connection therewith. The Mortgage Interest Rate for the Mortgage Loan does not include any such insurance premiummaintenance and/or household purposes; (xxiii) Each Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority, or by a mortgagee approved by the Secretary of Housing and Urban Development or any successor thereto; (xxiv) No Mortgage Loan is (a) subject to, covered by or in violation of the provisions of the Homeownership and Equity Protection Act of 1994, as amended, (b) a “high cost”, “covered”, “abusive”, “predatory”, or “high risk” mortgage loan (or a similarly designated loan using different terminology) under any federal, state or local law, including without limitation, the provisions of the Georgia Fair Lending Act, New York Banking Law, Section 6-1, the Arkansas Home Loan Protection Act, effective as of June 14, 2003, Kentucky State Statute KRS 360.100, effective as of June 25, 2003 or any other statute or regulation providing assignee liability to holders of such mortgage loans, (c) subject to or in violation of any such or comparable federal, state or local statutes or regulations; (xxv) [Reserved]; (xxvi) No Mortgage Loan is a “High-Cost Home Loan” or a refinanced “Covered Home Loan,” in each case, as defined in the New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46;10B-22 et seq.); (xxvii) No Mortgage Loan is a subsection 10 mortgage under the Oklahoma Home Ownership and Equity protection Act; (xxviii) No Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Nomura Home Equity Loan, Inc., Home Equity Loan Trust, Series 2007-1)

Representations and Warranties of the Seller Relating to the Mortgage Loans. The Seller hereby represents and warrants to the Purchaser that as to each Mortgage Loan as of the Closing ~~Date (unless otherwise set forth herein):~~Date: (i) ~~The information~~ Information provided to the Rating Agencies, including the loan level detail set forth in on the ~~Closing Schedule~~ Mortgage Loan Schedule, is true and correct ~~in all material respects as of~~ according to the ~~Cut-Off Date~~Rating Agency requirements; (ii) No fraud has taken place on the part of the Mortgagor or any other party involved in the origination or servicing of the Mortgage Loan; (iii) The delinquency status of each Mortgage Loan as of the Cut-off Date, to the extent known by the Seller, is set forth in the Prospectus Supplement, dated June 28, 2007, prepared in connection with the offering of the Certificates. As of the Cut-off Date, no Monthly Payment required to be made under any Mortgage Loan ~~has been contractually delinquent by one month or~~ was more ~~at any time preceding the date such Mortgage Loan was purchased by the Seller~~than 30 days delinquent; (~~iii~~iv) To Neither the ~~best~~ Seller nor the related originator of the ~~Seller’s knowledge, there~~ Mortgage Loan has advanced any Monthly Payment required under the terms of the Mortgage Note; (v) There are no delinquent taxes, assessment liens or insurance premiums affecting the related Mortgaged Property; (ivvi) The ~~buildings~~ terms of the Mortgage Note and ~~improvements on~~ the Mortgage have not been materially impaired, waived, altered or modified in any respect, except by written instruments, recorded in the applicable public recording office if necessary to maintain the lien priority of the Mortgage. The substance of any such waiver, alteration or modification has been approved by the title insurer, to the extent required by the related policy. No Mortgagor has been released, in whole or in part, except in connection with an assumption agreement (approved by the title insurer to the extent required by the policy); (vii) The Mortgaged Property ~~are~~ is insured against loss by fire and hazards of extended coverage (excluding earthquake insurance) in an amount which is at least equal to the lesser of (i) the amount necessary to compensate for any damage or loss to the improvements which are a part of such property on a replacement cost basis or (ii) the outstanding principal balance of the Mortgage Loan. ~~To the best of the Seller’s knowledge, if~~ If the Mortgaged Property is in an area identified on a flood hazard map or flood insurance rate map issued by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration is in effect. All such insurance policies contain a standard mortgagee clause naming the originator of the Mortgage Loan, its successors and assigns as mortgagee and the Seller has not engaged in any act or omission which would impair the coverage of any such insurance policies. Except as may be limited by applicable law, the Mortgage obligates the Mortgagor thereunder to maintain all such insurance at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to maintain such insurance at Mortgagor's cost and expense and to seek reimbursement therefor from the Mortgagor; (vviii) ~~Each Mortgage Loan and the related Prepayment Charge complied in all material respects with any~~ 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, ~~predatory and abusive lending,~~ fair housing, predatory, fair lending or disclosure laws applicable to the origination and servicing of ~~Mortgage Loans of a type similar to~~ the Mortgage ~~Loans~~ Loans, including prepayment charges, if any, have been complied with in all material respects, and the consummation of the transactions contemplated hereby will not involve the violation of any such laws; (viix) ~~Except as the Mortgage File may reflect, the~~ The Mortgage has not been satisfied, cancelled, subordinated or ~~rescinded~~ rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, cancellation, subordination, rescission or release; (~~vii~~x) The Mortgage was recorded or was submitted for recording in accordance with all applicable laws and is a valid, existing and enforceable perfected first lien on the Mortgaged Property including all improvements on the Mortgaged Property, subject only to (a) the lien of the current real property taxes and (b) covenants, conditions and restrictions, rights of way and easements; (~~viii~~xi) The Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, insured under the related title policy, and enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by a bankruptcy, insolvency or reorganization; (ixxii) The Seller is the sole legal, beneficial and equitable owner of the Mortgage Note and the Mortgage and has the full right to convey, transfer and sell the Mortgage Loan to the Purchaser free and clear of any encumbrance, equity, lien, pledge, charge, claim or security interest and immediately upon the sale, assignment and endorsement of the Mortgage Loans from the Seller to the Purchaser, the Purchaser shall have good and indefeasible title to and be the sole legal owner of the Mortgage Loans subject only to any encumbrance, equity, lien, pledge, charge, claim or security interest arising out of the Purchaser’s actions; (xxiii) Each Mortgage Loan is covered by either (a) an attorney’s opinion of title and abstract of title the form and substance of which is acceptable to mortgage lending institutions making mortgage loans in the area where the Mortgaged Property is located or (b) a valid and binding American Land Title Association lender's title insurance policy issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, which title insurance policy is generally acceptable to Xxxxxx Xxx and Xxxxxxx Mac. No claims have been filed under such lender's title insurance policy, and the Seller has not done, by act or omission, anything that would impair the coverage of the lender's title insurance policy; (xixiv) ~~To the best of the Seller’s knowledge, there~~ There is no material default, breach, violation event or event of acceleration existing under the Mortgage or the 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 material default, breach, violation or event of acceleration, and the Seller has not, nor has its predecessors, waived any material default, breach, violation or event of acceleration; (~~xii~~xv) There are no mechanics' or similar liens or claims which have been filed for work, labor or material provided to the related Mortgaged Property prior to the origination of the Mortgage Loan which are or may be liens prior to, or equal or coordinate with, the lien of the related Mortgage, except as may be disclosed in the related title policy; (xvi) Except with respect to approximately 8.87% of the Mortgage Loans by aggregate principal balance as of the Cut-off Date, which are balloon loans and approximately 44.94% by aggregate principal balance as of the Cut-off Date, which are interest only loans, each Mortgage Note is payable on the first day of each month in equal monthly installments of principal and interest (subject to adjustment in the case of the adjustable rate Mortgage Loans), with interest calculated on a 30/360 basis and payable in arrears, sufficient to amortize the Mortgage Loan fully by the stated maturity date over an original term from commencement of amortization to not more than forty (40) years. No Mortgage Loan permits negative amortization; (xvii) The servicing practices used in connection with the servicing of the Mortgage Loans have been in all respects reasonable and customary in the mortgage servicing industry of like mortgage loan servicers, servicing mortgage loans similar to the Mortgage Loans in the same jurisdiction as the Mortgaged Property; (xviii) To the best of the Seller’s knowledge, ~~no Mortgage Loan permits negative amortization or the deferral of accrual interest; (xiii) As of the date the Mortgage Loan was purchased by the Seller, to the best of the Seller’s knowledge,~~ there ~~was~~ is no proceeding pending for the total or partial condemnation of the Mortgaged Property; (~~xiv~~xix) To The Mortgage and related Mortgage Note contain customary and enforceable provisions such as to render the ~~best~~ rights and remedies of the ~~Seller’s knowledge~~holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security provided thereby, including, (a) in the case of a Mortgage designated as a deed of trust, by trustee's sale, and (b) otherwise by judicial foreclosure; (xx) The Mortgage Note is not and has not been secured by any collateral except the lien of the related Mortgage referred to in subsection (x) above; (xxi) In the event the Mortgage constitutes 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 the Mortgage, and no fees or expenses are or will become payable by the Seller to the trustee under the deed of trust, except in connection with a trustee's sale after default by the Mortgagor; (xxii) The Mortgage Loan is not subject to any valid right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, 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 such right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto; (~~xv) To the best of the Seller’s knowledge, each Mortgage Loan was originated on forms acceptable to FNMA or FHLMC; (xvi~~xxiii) The Mortgaged Property is free of material damage and in good repair, excepting therefrom any Mortgage Loan subject to an escrow withhold as shown on the ~~Closing Schedule and only to the extent of that escrow withhold~~Mortgage Loan Schedule; (~~xvii~~xxiv) All of the improvements which were included in determining the appraised value of the Mortgaged Property lie wholly within the Mortgaged Property's boundary lines and no improvements on adjoining properties encroach upon the Mortgaged Property, excepting therefrom: (i) any encroachment insured against in the lender's title insurance policy identified in clause (xiii) above, (ii) any encroachment generally acceptable to mortgage loan originators doing business in the same jurisdiction as the Mortgaged Property, and (iii) any encroachment which does not materially interfere with the benefits of the security intended to be provided by such Mortgage; (xxv) All parties to the Mortgage Note had the legal capacity to execute the Mortgage Note and the Mortgage, and the Mortgage Note and the Mortgage have been duly executed by such parties; (~~xviii~~xxvi) To the best of the Seller’s knowledge, at the time of origination of the Mortgage Loan, no appraised improvement located on or being part of the Mortgaged Property was in violation of any applicable zoning law or regulation and ~~to the best of the Seller’s knowledge,~~ all inspections, licenses and certificates required in connection with the origination of any Mortgage Loan with respect to the occupancy of the Mortgaged Property, have been made or obtained from the appropriate authorities; (~~xix~~xxvii) No Mortgagor has notified the Seller of any relief requested or allowed under the Servicemembers Civil Relief Act; (xxviii) All parties which have held an interest in the Mortgage Loan are (or during the period in which they held and disposed of such interest, were) (1) in compliance with any and all applicable licensing requirements of the state wherein the Mortgaged Property is located, (2) organized under the laws of such state, (3) qualified to do business in such state, (4) a federal savings and loan association or national bank, (5) not doing business in such state, or (6) exempt from the applicable licensing requirements of such state; (xxix) The Mortgage File contains an appraisal of the related Mortgaged Property which ~~satisfied the standards of FNMA and FHLMC and~~ was made prior to the ~~origination~~ approval of the Mortgage Loan by a qualified appraiser, duly appointed by the related originator and was made in accordance with the ~~relevant provisions of the~~ Financial Institutions Reform, Recovery, and Enforcement Act of ~~1989~~1989 and the Uniform Standards of Professional Appraisal Practice; (xxxxx) Except as may otherwise be limited by applicable law, the Mortgage contains an enforceable provision for the acceleration of the payment of the unpaid principal balance of the Mortgage Loan in the event that the Mortgaged Property is sold or transferred without the prior written consent of the Mortgagee thereunder; (xxxi) The Mortgage Loan does not contain any provision which would constitute a “buydown” provision and pursuant to which Monthly Payments are paid or partially paid with funds deposited in a separate account established by the related originator, the Mortgagor or anyone on behalf of the Mortgagor, or paid by any source other than the Mortgagor. The Mortgage Loan is not a “graduated payment mortgage loan” and the Mortgage loan does not have a shared appreciation or other contingent interest feature; (xxxii) To the best of the Seller’s knowledge there is no action or proceeding directly involving the Mortgaged Property presently pending in which compliance with any environmental law, rule or regulation is at issue and the Seller has received no notice of any condition at the Mortgaged Property which is reasonably likely to give rise to an action or proceeding in which compliance with any environmental law, rule or regulation is at issue; (xxxiii) Each Mortgage Loan is an obligation which is principally secured by an interest in real property within the meaning of Treasury Regulation section ~~1.860G 2(a~~1.860G-2(a); (~~xxi~~xxxiv) Each Mortgage Loan is directly secured by a first lien on, and consists of a single parcel of, real property with a detached one-to-four family residence erected thereon, a townhouse or an individual condominium unit in a condominium project, or an individual unit in a planned unit development (“PUD”). No residence or ~~stock in~~ dwelling is a ~~cooperative housing corporation; (xxii) With respect to any Mortgage Loan with~~ leasehold, mobile home or a manufactured dwelling unless it is an ~~original Loan-to-Value Ratio greater than 80%, the Mortgage Loan will be insured by~~ Acceptable Manufactured Dwelling. An “Acceptable Manufactured Dwelling” is a ~~primary mortgage guaranty insurance policy, issued by an insurer which meets the requirements of FNMA and FHLMC~~manufactured dwelling, which ~~insures that portion of the Mortgage Loan in excess of the portion of the appraised value of~~ is permanently affixed to a foundation and treated as “real estate” under applicable law. No Mortgaged Property is used for commercial purposes. Mortgaged Properties which contain a home office shall not be considered as being used for commercial purposes as long as the Mortgaged Property ~~required by FNMA. All provisions of such primary mortgage guaranty insurance policy have~~ has not been altered for commercial purposes and ~~are being complied with~~is not storing any chemicals or raw materials other than those commonly used for homeowner repair, such policy is in full force and effect, and all premiums due thereunder have been paid. Any Mortgage subject to any such primary mortgage guaranty insurance policy obligates the Mortgagor thereunder to maintain such insurance and to pay all premiums and charges in connection therewith. The Mortgage Interest Rate for the Mortgage Loan does not include any such insurance premiummaintenance and/or household purposes; (xxiii) Each Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority, or by a mortgagee approved by the Secretary of Housing and Urban Development or any successor thereto; (xxiv) No Mortgage Loan is (a) subject to, covered by or in violation of the provisions of the Homeownership and Equity Protection Act of 1994, as amended, (b) a “high cost”, “covered”, “abusive”, “predatory”, or “high risk” mortgage loan (or a similarly designated loan using different terminology) under any federal, state or local law, including without limitation, the provisions of the Georgia Fair Lending Act, New York Banking Law, Section 6-1, the Arkansas Home Loan Protection Act, effective as of June 14, 2003, Kentucky State Statute KRS 360.100, effective as of June 25, 2003 or any other statute or regulation providing assignee liability to holders of such mortgage loans, (c) subject to or in violation of any such or comparable federal, state or local statutes or regulations; (xxv) [Reserved]; (xxvi) No Mortgage Loan is a “High-Cost Home Loan” or a refinanced “Covered Home Loan,” in each case, as defined in the New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46;10B-22 et seq.); (xxvii) No Mortgage Loan is a subsection 10 mortgage under the Oklahoma Home Ownership and Equity protection Act; (xxviii) No Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2007-2)

Representations and Warranties of the Seller Relating to the Mortgage Loans. The Seller hereby represents and warrants to the Purchaser that as to each Mortgage Loan as of the Closing ~~Date (unless otherwise set forth herein):~~Date: (i) ~~The information set forth in~~ Information provided to the ~~Closing Schedule~~ Rating Agencies, including the loan level detail, is true and correct ~~in all material respects as of~~ according to the ~~Cut-Off Date~~Rating Agency requirements; (ii) No fraud has taken place on the part of the Mortgagor or any other party involved in the origination or servicing of the Mortgage Loan; (iii) No Monthly Payment required to be made under any Mortgage Loan has ~~been~~ been, or will be, contractually delinquent by one month or more on, or at any time ~~preceding~~ preceding, the date such Mortgage Loan was purchased by the Seller; (~~iii~~iv) To Neither the ~~best~~ Seller nor the related originator of the ~~Seller’s knowledge, there~~ Mortgage Loan has advanced any Monthly Payment required under the terms of the Mortgage Note; (v) There are no delinquent taxes, assessment liens or insurance premiums affecting the related Mortgaged Property; (ivvi) The ~~buildings~~ terms of the Mortgage Note and ~~improvements on~~ the Mortgage have not been materially impaired, waived, altered or modified in any respect, except by written instruments, recorded in the applicable public recording office if necessary to maintain the lien priority of the Mortgage. The substance of any such waiver, alteration or modification has been approved by the title insurer, to the extent required by the related policy. No Mortgagor has been released, in whole or in part, except in connection with an assumption agreement (approved by the title insurer to the extent required by the policy) and which assumption agreement has been delivered to the Trustee; (vii) The Mortgaged Property ~~are~~ is insured against loss by fire and hazards of extended coverage (excluding earthquake insurance) in an amount which is at least equal to the lesser of (i) the amount necessary to compensate for any damage or loss to the improvements which are a part of such property on a replacement cost basis or (ii) the outstanding principal balance of the Mortgage Loan. ~~To the best of the Seller’s knowledge, if~~ If the Mortgaged Property is in an area identified on a flood hazard map or flood insurance rate map issued by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available), a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration is in effect. All such insurance policies contain a standard mortgagee clause naming the originator of the Mortgage Loan, its successors and assigns as mortgagee and the Seller has not engaged in any act or omission which would impair the coverage of any such insurance policies. Except as may be limited by applicable law, the Mortgage obligates the Mortgagor thereunder to maintain all such insurance at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to maintain such insurance at Mortgagor's cost and expense and to seek reimbursement therefor from the Mortgagor; (vviii) Each Mortgage Loan and the related Prepayment ~~Charge~~ Charge, if any, complied in all material respects with any and all requirements of any federal, state or local law including, without limitation, usury, truth in lending, anti-predatory lending, real estate settlement procedures, consumer credit protection, equal credit opportunity, ~~predatory and abusive lending,~~ fair ~~housing,~~ housing or disclosure laws applicable to the origination and servicing of ~~Mortgage Loans of a type similar to~~ the Mortgage Loans and the consummation of the transactions contemplated hereby will not involve the violation of any such laws; (viix) ~~Except as the Mortgage File may reflect, the~~ The Mortgage has not been satisfied, cancelled, subordinated (other than with respect to second lien Mortgage Loans, the subordination to the first lien) or ~~rescinded~~ rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, cancellation, subordination, rescission or release; (~~vii~~x) The Mortgage was recorded or was submitted for recording in accordance with all applicable laws and is a valid, existing and enforceable perfected first or second lien on the Mortgaged Property including all improvements on the Mortgaged Property, subject only to (a) the lien of the current real property taxes and (b) covenants, conditions and restrictions, rights of way and easements; (~~viii~~xi) The Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, insured under the related title policy, and enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by a bankruptcy, insolvency or reorganization; (ixxii) The Seller is the sole legal, beneficial and equitable owner of the Mortgage Note and the Mortgage and has the full right to convey, transfer and sell the Mortgage Loan to the Purchaser free and clear of any encumbrance, equity, ~~lien~~lien (other than with respect to second lien Mortgage Loans, the subordination to the first lien Mortgage Loan), pledge, charge, claim or security interest and immediately upon the sale, assignment and endorsement of the Mortgage Loans from the Seller to the Purchaser, the Purchaser shall have good and indefeasible title to and be the sole legal owner of the Mortgage Loans subject only to any encumbrance, equity, lien, pledge, charge, claim or security interest arising out of the Purchaser’s actions; (xxiii) Each Mortgage Loan is covered by either (a) an attorney’s opinion of title and abstract of title the form and substance of which is acceptable to mortgage lending institutions making mortgage loans in the area where the Mortgaged Property is located or (b) a valid and binding American Land Title Association lender's title insurance policy issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, which title insurance policy is generally acceptable to Xxxxxx Xxx and Xxxxxxx Mac. No claims have been filed under such lender's title insurance policy, and the Seller has not done, by act or omission, anything that would impair the coverage of the lender's title insurance policy; (xixiv) ~~To the best of the Seller’s knowledge, there~~ There is no material default, breach, violation event or event of acceleration existing under the Mortgage or the 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 material default, breach, violation or event of acceleration, and the Seller has not, nor has its predecessors, waived any material default, breach, violation or event of acceleration; (~~xii~~xv) To There are no mechanics' or similar liens or claims which have been filed for work, labor or material provided to the ~~best~~ related Mortgaged Property prior to the origination of the ~~Seller’s knowledge~~Mortgage Loan which are or may be liens prior to, no or equal or coordinate with, the lien of the related Mortgage, except as may be disclosed in the related title policy; (xvi) Each Mortgage Note is payable on the first day of each month in equal monthly installments of principal and interest (subject to adjustment in the case of the adjustable rate Mortgage Loans), with interest calculated on a 30/360 basis and payable in arrears, sufficient to amortize the Mortgage Loan fully by the stated maturity date over an original term from commencement of amortization to not more than thirty (30) years. No Mortgage Loan is a balloon loan. No Mortgage Loan permits negative ~~amortization or the deferral of accrual interest~~amortization; (~~xiii~~xvii) As The servicing practices used in connection with the servicing of the Mortgage Loans have been in all respects reasonable and customary in the mortgage servicing industry of like mortgage loan servicers, servicing mortgage loans similar to the Mortgage Loans in the same jurisdiction as the Mortgaged Property; (xviii) At the time of origination of the Mortgage Loan there was no proceeding pending for the total or partial condemnation of the Mortgaged Property and, as of the date ~~the~~ such Mortgage Loan was purchased by the ~~Seller~~Purchaser, to the best of the ~~Seller~~Purchaser’s ~~knowledge,~~ knowledge there ~~was~~ is no proceeding pending for the total or partial condemnation of the Mortgaged Property; (~~xiv~~xix) To The Mortgage and related Mortgage Note contain customary and enforceable provisions such as to render the ~~best~~ rights and remedies of the ~~Seller’s knowledge~~holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security provided thereby, including, (a) in the case of a Mortgage designated as a deed of trust, by trustee's sale, and (b) otherwise by judicial foreclosure; (xx) The Mortgage Note is not and has not been secured by any collateral except the lien of the related Mortgage referred to in subsection (x) above; (xxi) In the event the Mortgage constitutes 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 the Mortgage, and no fees or expenses are or will become payable by the Seller to the trustee under the deed of trust, except in connection with a trustee's sale after default by the Mortgagor; (xxii) The Mortgage Loan is not subject to any valid right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, 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 such right of rescission, set-off, counterclaim or defense, including without limitation the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto; (~~xv) To the best of the Seller’s knowledge, each Mortgage Loan was originated on forms acceptable to FNMA or FHLMC; (xvi~~xxiii) The Mortgaged Property is free of material damage and in good repair, excepting therefrom any Mortgage Loan subject to an escrow withhold as shown on the ~~Closing Schedule and only to the extent of that escrow withhold~~Mortgage Loan Schedule; (~~xvii~~xxiv) All of the improvements which were included in determining the appraised value of the Mortgaged Property lie wholly within the Mortgaged Property's boundary lines and no improvements on adjoining properties encroach upon the Mortgaged Property, excepting therefrom: (i) any encroachment insured against in the lender's title insurance policy identified in clause (xiii) above, (ii) any encroachment generally acceptable to mortgage loan originators doing business in the same jurisdiction as the Mortgaged Property, and (iii) any encroachment which does not materially interfere with the benefits of the security intended to be provided by such Mortgage; (xxv) All parties to the Mortgage Note had the legal capacity to execute the Mortgage Note and the Mortgage, and the Mortgage Note and the Mortgage have been duly executed by such parties; (~~xviii~~xxvi) To the best of the Seller’s knowledge, at the time of origination of the Mortgage Loan, no appraised improvement located on or being part of the Mortgaged Property was in violation of any applicable zoning law or regulation and ~~to the best of the Seller’s knowledge,~~ all inspections, licenses and certificates required in connection with the origination of any Mortgage Loan with respect to the occupancy of the Mortgaged Property, have been made or obtained from the appropriate authorities; (~~xix~~xxvii) No Mortgagor has notified the Seller of any relief requested or allowed under the Servicemembers Civil Relief Act; (xxviii) All parties which have held an interest in the Mortgage Loan are (or during the period in which they held and disposed of such interest, were) (1) in compliance with any and all applicable licensing requirements of the state wherein the Mortgaged Property is located, (2) organized under the laws of such state, (3) qualified to do business in such state, (4) a federal savings and loan association or national bank, (5) not doing business in such state, or (6) exempt from the applicable licensing requirements of such state; (xxix) The Mortgage File contains an appraisal of the related Mortgaged Property which ~~satisfied the standards of FNMA and FHLMC and~~ was made prior to the ~~origination~~ approval of the Mortgage Loan by a qualified appraiser, duly appointed by the related originator and was made in accordance with the ~~relevant provisions of the~~ Financial Institutions Reform, Recovery, and Enforcement Act of ~~1989~~1989 and the Uniform Standards of Professional Appraisal Practice; (xxxxx) Except as may otherwise be limited by applicable law, the Mortgage contains an enforceable provision for the acceleration of the payment of the unpaid principal balance of the Mortgage Loan in the event that the Mortgaged Property is sold or transferred without the prior written consent of the Mortgagee thereunder; (xxxi) The Mortgage Loan does not contain any provision which would constitute a “buydown” provision and pursuant to which Monthly Payments are paid or partially paid with funds deposited in a separate account established by the related originator, the Mortgagor or anyone on behalf of the Mortgagor, or paid by any source other than the Mortgagor. The Mortgage Loan is not a “graduated payment mortgage loan” and the Mortgage loan does not have a shared appreciation or other contingent interest feature; (xxxii) To the best of the Seller's knowledge there is no action or proceeding directly involving the Mortgaged Property presently pending in which compliance with any environmental law, rule or regulation is at issue and the Seller has received no notice of any condition at the Mortgaged Property which is reasonably likely to give rise to an action or proceeding in which compliance with any environmental law, rule or regulation is at issue; (xxxiii) Each Mortgage Loan is an obligation which is principally secured by an interest in real property within the meaning of Treasury Regulation section ~~1.860G 2(a~~1.860G-2(a); (~~xxi~~xxxiv) Each Mortgage Loan is directly secured by a first or second lien on, and consists of a single parcel of, real property with a detached one-to-four family residence erected thereon, a townhouse or an individual condominium unit in a condominium project, or an individual unit in a planned unit development (“PUD”). No residence or ~~stock in~~ dwelling is a ~~cooperative housing corporation; (xxii) With respect to any Mortgage Loan with~~ leasehold, mobile home or a manufactured dwelling unless it is an ~~original Loan-to-Value Ratio greater than 80%, the Mortgage Loan will be insured by~~ Acceptable Manufactured Dwelling. An “Acceptable Manufactured Dwelling” is a ~~primary mortgage guaranty insurance policy, issued by an insurer which meets the requirements of FNMA and FHLMC~~manufactured dwelling, which ~~insures that portion of the Mortgage Loan in excess of the portion of the appraised value of~~ is permanently affixed to a foundation and treated as “real estate” under applicable law. No Mortgaged Property is used for commercial purposes. Mortgaged Properties which contain a home office shall not be considered as being used for commercial purposes as long as the Mortgaged Property ~~required by FNMA. All provisions of such primary mortgage guaranty insurance policy have~~ has not been altered for commercial purposes and ~~are being complied with~~is not storing any chemicals or raw materials other than those commonly used for homeowner repair, such policy is in full force and effect, and all premiums due thereunder have been paid. Any Mortgage subject to any such primary mortgage guaranty insurance policy obligates the Mortgagor thereunder to maintain such insurance and to pay all premiums and charges in connection therewith. The Mortgage Interest Rate for the Mortgage Loan does not include any such insurance premiummaintenance and/or household purposes; (xxiii) Each Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority, or by a mortgagee approved by the Secretary of Housing and Urban Development or any successor thereto; (xxiv) No Mortgage Loan is (a) subject to, covered by or in violation of the provisions of the Homeownership and Equity Protection Act of 1994, as amended, (b) a “high cost”, “covered”, “abusive”, “predatory”, or “high risk” mortgage loan (or a similarly designated loan using different terminology) under any federal, state or local law, including without limitation, the provisions of the Georgia Fair Lending Act, New York Banking Law, Section 6-1, the Arkansas Home Loan Protection Act, effective as of June 14, 2003, Kentucky State Statute KRS 360.100, effective as of June 25, 2003 or any other statute or regulation providing assignee liability to holders of such mortgage loans, (c) subject to or in violation of any such or comparable federal, state or local statutes or regulations; (xxv) [Reserved]; (xxvi) No Mortgage Loan is a “High-Cost Home Loan” or a refinanced “Covered Home Loan,” in each case, as defined in the New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46;10B-22 et seq.); (xxvii) No Mortgage Loan is a subsection 10 mortgage under the Oklahoma Home Ownership and Equity protection Act; (xxviii) No Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Nomura Home Equity Loan, Inc., Home Equity Loan Trust, Series 2006-Fm1)

Common use of Representations and Warranties of the Seller Relating to the Mortgage Loans Clause in Contracts