Representations and Warranties Relating to the Mortgage Loans. (a) The Originator and the Obligor hereby represent and warrant with respect to the Mortgage Loans to the Purchaser that as of the Closing Date or as of such date specifically provided herein: (1) The applicable Seller has good title to and is the sole owner and holder of the related Mortgage Loans; (2) Immediately prior to the transfer and assignment to the Purchaser, the Mortgage Notes and the Mortgage Loans were not subject to an assignment or pledge, and the applicable Seller has full right and authority to sell and assign the related Mortgage Loans; (3) The applicable Seller is transferring the related Mortgage Loan to the Purchaser free and clear of any and all liens, pledges, charges or security interests of any nature encumbering the Mortgage Loans; (4) The information set forth on each Schedule is true and correct in all material respects as of the Cut-off Date or such other date as may be indicated in such schedule; (5) The Mortgage Loan has been acquired, serviced, collected and otherwise dealt with by the Originator and any affiliate of the Originator in compliance with all applicable federal, state and local laws and regulations and the terms of the related Mortgage Note and Mortgage; (6) The related Mortgage Note and Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); (7) The related Mortgage is a valid and enforceable first or second lien on the related Mortgaged Property, which Mortgaged Property is free and clear of all encumbrances and liens (including mechanics liens) having priority over the first or second lien of the Mortgage except for: (i) liens for real estate taxes and assessments not yet due and payable; (ii) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected or considered in the lender's title insurance policy delivered to the originator of the Mortgage Loan and referred to in the appraisal made in connection with the origination of the related Mortgage Loan, (iii) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by such Mortgage and (iv) the first lien on the Mortgaged Property, in the case of the Mortgages that are second liens; (8) Any security agreement, chattel mortgage or equivalent document related to such Mortgage Loan establishes and creates a valid and enforceable first or second lien on the Mortgaged Property; (9) As of the last calendar day of March 2007, none of the Mortgage Loans are Delinquent. (10) None of the Originator, the Obligor or any Seller Trust has advanced funds, or induced, solicited or knowingly received any advance of funds by a party other than the Mortgagor, directly or indirectly, for the payment of any amount required under the Mortgage Loan; (11) None of the Originator, the Obligor or any Seller Trust has impaired, waived, altered or modified the related Mortgage or Mortgage Note in any material respect, or satisfied, canceled, rescinded or subordinated such Mortgage or Mortgage Note in whole or in part or released all or any material portion of the Mortgaged Property from the lien of the Mortgage, or executed any instrument of release, cancellation, rescission or satisfaction of the Mortgage Note or Mortgage; (12) As of the Cut-off Date, the Mortgage has not been satisfied, canceled or subordinated, in whole or in part, or rescinded, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part (except for a release that does not materially impair the security of the Mortgage Loan or a release the effect of which is reflected in the Loan-to-Value Ratio or combined Loan-to-Value Ratio for the Mortgage Loan as set forth in the Schedule of Mortgage Loans), nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission; (13) No Mortgage Loan is subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, nor will the operation of any of the terms of any Mortgage Note or Mortgage, or the exercise of any right thereunder, render either the Mortgage Note or 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; (14) To the Originator’s knowledge, there is no proceeding pending for the total or partial condemnation and no eminent domain proceedings pending affecting any Mortgaged Property; (15) Each Mortgage Loan is covered by either (i) a mortgage title insurance policy or other generally acceptable form of insurance policy customary in the jurisdiction where the Mortgaged Property is located together with an adjustable rate rider if applicable or (ii) if generally acceptable in the jurisdiction where the Mortgaged Property is located, an attorney's opinion of title given by an attorney licensed to practice law in the jurisdiction where the Mortgaged Property is located. All of the Originator's rights under such policies, opinions or other instruments shall be transferred and assigned to Purchaser upon sale and assignment of the Mortgage Loans hereunder. The title insurance policy has been issued by a title insurer licensed to do business in the jurisdiction where the Mortgaged Property is located, insuring the original lender, its successor and assigns, as to the first or second priority lien of the Mortgage in the original principal amount of the Mortgage Loan, subject to the exceptions contained in such policy. The Originator is the sole insured of such mortgagee title insurance policy, and such mortgagee title insurance policy is in full force and effect and will be in force and effect upon the consummation of the transactions contemplated by this Agreement. Neither the Originator nor any affiliate of the Originator has made, and the Originator has no knowledge of, any claims under such mortgagee title insurance policy. The Originator is not aware of any action by a prior holder and neither the Originator nor any affiliate of the Originator has done, by act or omission, anything which could impair the coverage or enforceability of such mortgagee title insurance policy or the accuracy of such attorney's opinion of title; (16) There is no material default, breach, violation or event of acceleration existing under the related Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration, other than a payment delinquency that is for a payment due after the date specified in (i) above. None of the Originator, the Obligor, any Seller Trust or any affiliate of the Originator or any Seller Trust has waived any default, breach, violation or event of acceleration; (17) With respect to any Mortgage Loan which provides for an adjustable interest rate, all rate adjustments have been performed in accordance with the terms of the related Mortgage Note or subsequent modifications, if any; (18) To the Originator’s knowledge, there are no delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, including assessments payable in future installments or other outstanding charges, affecting the related Mortgaged Property; (19) As of the Cut-off Date, no foreclosure proceedings are pending against the Mortgaged Property and the Mortgage Loan is not subject to any pending bankruptcy or insolvency proceeding, and to the Originator’s best knowledge, no material litigation or lawsuit relating to the Mortgage Loan is pending; (20) The Mortgaged Property for each Mortgage Loan is insured under a hazard insurance policy (“Hazard Insurance”) in an amount at least equal to the lesser of (i) the maximum insurable value of such improvements or (ii) the principal balance of the Mortgage Loan with a standard mortgagee clause, in either case in an amount sufficient to avoid the application of any “co-insurance provisions,” and, if it was in place at origination of the Mortgage Loan, flood insurance, at the mortgagor's cost and expense. If the Mortgaged Property is in an area identified in the Federal Register by the Federal Emergency Management Agency (“FEMA”) as having special flood hazards, a flood insurance policy is in effect which met the requirements of FEMA at the time such policy was issued. The Mortgage obligates the Mortgagor to maintain the Hazard Insurance, and, if applicable, flood insurance policy at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at the Mortgagor's cost and expense, and to seek reimbursement therefor from the Mortgagor; (21) The Mortgage Note is not and has not been secured by any collateral except the lien of the corresponding Mortgage and the security interest of any applicable security agreement or chattel mortgage; (22) 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. The Mortgage contains customary and enforceable provisions such as to render the rights and remedies of the holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security provided thereby, including (i) in the case of a Mortgage designated as a deed of trust, by trustee's sale and (ii) otherwise by judicial foreclosure. Since the date of origination of the Mortgage Loan, the Mortgaged Property has not been subject to any bankruptcy proceeding or foreclosure proceeding and the Mortgagor has not filed for protection under applicable bankruptcy laws. There is no homestead or other exemption available to the Mortgagor that would interfere with the right to sell the Mortgaged Property at a trustee's sale or the right to foreclose the Mortgage. In the event the Mortgage constitutes a deed of trust, a trustee, duly qualified under applicable law to serve as such, as been properly designated and currently so serves and is named in the Mortgage, and no fees or expenses are or will become payable by Purchaser to the trustee under the deed of trust, except in connection with a trustee's sale after default by the related Mortgagor. The Mortgagor has not notified the Originator or any affiliate of the Originator and the Originator has no knowledge of any relief requested or allowed to the Mortgagor under the Servicemembers Civil Relief Act; (23) Except as set forth in the appraisal which forms part of the related Mortgage File, the Mortgaged Property, normal wear and tear excepted, is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty so as to affect materially and adversely the value of the Mortgaged Property as security for the Mortgage Loan or the use for which the premises were intended; (24) To the Originator’s knowledge, there was no fraud involved in the origination of the Mortgage Loan by the mortgagee or by the Mortgagor, any appraiser or any other party involved in the origination of the Mortgage Loan; (25) Each Mortgage File contains an appraisal of the Mortgaged Property indicating the appraised value at the time of origination for such Mortgaged Property. Each appraisal has been performed in accordance with the provisions of the Financial Institutions Reform, Recovery and Enforcement Act of 1989; (26) To the best of the Originator’s knowledge, all parties which have had any interest in the Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the period in which they held and disposed of such interest, were) in compliance with any and all applicable “doing business” and licensing requirements of the laws of the state wherein the Mortgaged Property is located; (27) No improvements on the related Mortgaged Property (upon which value was given) encroach on adjoining properties (and in the case of a condominium unit, such improvements are within the project with respect to that unit), and no improvements on adjoining properties encroach upon the Mortgaged Property unless there exists in the Mortgage File a title Policy with endorsements which insure against losses sustained by the insured as a result of such encroachments; (28) Each Mortgage Loan was originated or acquired by a savings and loan association, a savings bank, a commercial bank or similar banking institution which is supervised and examined by a federal or state authority, or by a mortgagee approved by the Secretary of HUD. Each Mortgage Loan was originated substantially in accordance with the Originator's underwriting criteria, which are at least as stringent as the underwriting criteria set forth in the Prospectus Supplement. Each Mortgage Loan is currently being serviced by the Originator and has been serviced by the Originator since the date of origination of such Mortgage Loan;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2007-3)
Representations and Warranties Relating to the Mortgage Loans. (a) The Originator and the Obligor hereby Originators represent and warrant with respect to the Mortgage Loans Unaffiliated Seller and the Unaffiliated Seller represents to the Purchaser that Depositor that, as of the Closing Date or Date, as to each Initial Mortgage Loan, and as of the Subsequent Transfer Date, as to each Subsequent Mortgage Loan, immediately prior to the sale and transfer of such date specifically provided hereinMortgage Loan by the Unaffiliated Seller to the Depositor:
(1) The applicable Seller has good title to and is the sole owner and holder of the related Mortgage Loans;
(2) Immediately prior to the transfer and assignment to the Purchaser, the Mortgage Notes and the Mortgage Loans were not subject to an assignment or pledge, and the applicable Seller has full right and authority to sell and assign the related Mortgage Loans;
(3) The applicable Seller is transferring the related Mortgage Loan to the Purchaser free and clear of any and all liens, pledges, charges or security interests of any nature encumbering the Mortgage Loans;
(4a) The information set forth on in each Mortgage Loan Schedule is complete, true and correct;
(b) The information to be provided by the Unaffiliated Seller or the Originators, directly or indirectly, to the Depositor in connection with a Subsequent Mortgage Loan will be true and correct in all material respects as of at the Cut-off Date date or dates respecting which such other date as may be indicated in such scheduleinformation is furnished;
(5c) The Mortgage Loan has been acquired, serviced, collected and otherwise dealt with by the Originator and any affiliate of the Originator in compliance with all applicable federal, state and local laws and regulations and the terms of the related Mortgage Note and Mortgage;
(6) The related Mortgage Note and Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(7) The related Each Mortgage is a valid and enforceable first or second lien on a fee simple (or its equivalent under applicable state law) estate in the related Mortgaged Property, which Mortgaged Property is free and clear of all encumbrances and liens (including mechanics liens) having priority over real property securing the first or second lien of amount owed by the Mortgagor under the Mortgage except for: Note subject only to (i) liens for the lien of current real estate property taxes and assessments which are not yet due and payable; delinquent, (ii) with respect to any Mortgage Loan identified on the Mortgage Loan Schedule as secured by a second lien, the related first mortgage loan, (iii) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally in the area wherein the property subject to the Mortgage is located or specifically reflected or considered in the lender's title insurance policy delivered to the originator of the Mortgage Loan and referred to in the appraisal made obtained in connection with the origination of the related Mortgage Loan, Loan obtained by the Unaffiliated Seller and (iiiiv) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by such Mortgage and (iv) the first lien on the Mortgaged Property, in the case of the Mortgages that are second liens;
(8) Any security agreement, chattel mortgage or equivalent document related to such Mortgage Loan establishes and creates a valid and enforceable first or second lien on the Mortgaged Property;
(9) As of the last calendar day of March 2007, none of the Mortgage Loans are Delinquent.
(10) None of the Originator, the Obligor or any Seller Trust has advanced funds, or induced, solicited or knowingly received any advance of funds by a party other than the Mortgagor, directly or indirectly, for the payment of any amount required under the Mortgage Loan;
(11) None of the Originator, the Obligor or any Seller Trust has impaired, waived, altered or modified the related Mortgage or Mortgage Note in any material respect, or satisfied, canceled, rescinded or subordinated such Mortgage or Mortgage Note in whole or in part or released all or any material portion of the Mortgaged Property from the lien of the Mortgage, or executed any instrument of release, cancellation, rescission or satisfaction of the Mortgage Note or Mortgage;
(12d) Immediately prior to the transfer and assignment by the related Originator to the Unaffiliated Seller and by the Unaffiliated Seller to the Trustee, the Unaffiliated Seller and such Originator, as applicable, had good title to, and was the sole owner of each Mortgage Loan, free of any interest of any other Person, and the Unaffiliated Seller and such Originator has transferred all right, title and interest in each Mortgage Loan to the Trustee and the Unaffiliated Seller, as applicable;
(e) As of the Cut-off Off Date, the Mortgage has not been satisfied, canceled no payment of principal or subordinated, in whole interest on or in part, or rescinded, and the Mortgaged Property has not been released from the lien respect of the Mortgage, in whole or in part (except for a release that does not materially impair the security of the any Mortgage Loan remains unpaid for 30 or a release more days past the effect of which is reflected date the same was due in accordance with the Loan-to-Value Ratio or combined Loan-to-Value Ratio for the related Mortgage Loan as set forth in the Schedule of Mortgage Loans), nor has any instrument been executed that would effect any such release, cancellation, subordination or rescissionNote without regard to applicable grace periods;
(13f) No Mortgage Loan has Mortgage Interest Rate less than 7.99% per annum and the weighted average Mortgage Interest Rate of the Mortgage Loans is 11.46%;
(g) At origination, no Mortgage Loan had an original term to maturity of greater than 360 months;
(h) As of the Statistical Calculation Date, the weighted average remaining term to maturity of the Mortgage Loans is 227 months;
(i) To the best knowledge of the Unaffiliated Seller and each of the Originators, there is no mechanics' lien or claim for work, labor or material (and no rights are outstanding that under law could give rise to such lien) affecting the premises subject to any Mortgage which is or may be a lien prior to, or equal or coordinate with, the lien of such Mortgage, except those which are insured against by the title insurance policy referred to in (ff) below;
(j) To the best knowledge of the Unaffiliated Seller and each of the Originators, there is no delinquent tax or assessment lien against any Mortgaged Property;
(k) Such Mortgage Loan, the Mortgage, and the Mortgage Note, including, without limitation, the obligation of the Mortgagor to pay the unpaid principal of and interest on the Mortgage Note, are each not subject to any right of rescissionrescission (or any such rescission right has expired in accordance with applicable law), set-off, counterclaim counterclaim, or defense, including the defense of usury, nor will the operation of any of the terms of any the Mortgage Note or the Mortgage, or the exercise of any right thereunder, render either the Mortgage Note or the Mortgage unenforceable unenforceable, in whole or in part, or subject to any right of rescission, set-off, counterclaim counterclaim, or defense, including the defense of usury, and no such right of rescission, set-off, counterclaim counterclaim, or defense has been asserted with respect thereto;
(14l) To the Originator’s knowledgebest knowledge of the Unaffiliated Seller and each of the Originators, the Mortgaged Property is free of material damage and is in good repair, and there is no pending or threatened proceeding pending for the total or partial condemnation and no eminent domain proceedings pending affecting any of the Mortgaged Property;
(15m) Neither the Originators nor the Unaffiliated Seller has received a notice of default of any first mortgage loan secured by the Mortgaged Property which has not been cured by a party other than the Unaffiliated Seller;
(n) Each Mortgage Note and Mortgage are in substantially the forms previously provided to the Trustee on behalf of the Unaffiliated Seller;
(o) No Mortgage Loan had, at the date of origination, a Combined Loan-to-Value Ratio in excess of 100%, and the weighted average Combined Loan-to-Value ratio of all Mortgage Loans as of the Statistical Calculation Date is covered by either approximately 76.03%;
(ip) The Mortgage Loan was not originated in a mortgage title insurance policy or other generally acceptable form program in which the amount of insurance policy customary documentation in the jurisdiction where underwriting process was limited in comparison to the Mortgaged Property is located together with an adjustable rate rider if applicable or originator's normal documentation requirements;
(iiq) if generally acceptable in No more than the jurisdiction where the Mortgaged Property is located, an attorney's opinion of title given by an attorney licensed to practice law in the jurisdiction where the Mortgaged Property is located. All of the Originator's rights under such policies, opinions or other instruments shall be transferred and assigned to Purchaser upon sale and assignment following percentages of the Mortgage Loans hereunder. The title insurance policy has been issued by a title insurer licensed to do business Principal Balance as of the Statistical Calculation Date are secured by Mortgaged Properties located in the jurisdiction where following states: Percent of State Principal Balance -------------------------- -------------------------- Colorado 0.15% Connecticut 1.22 Delaware 3.98 Florida 2.43 Georgia 7.60 Illinois 0.64 Indiana 0.29 Kentucky 0.48 Maryland 3.34 Massachusetts 0.03 Michigan 0.08 Mississippi 1.53 North Carolina 1.03 New Jersey 30.00 New York 14.58 Ohio 1.53 Pennsylvania 26.78 South Carolina 0.32 Tennessee 0.33 Virginia 3.66 ------------------------- 100.00% =========================
(r) The Mortgage Loans were not selected by the Mortgaged Property is located, insuring Unaffiliated Seller or the original lender, its successor and assigns, as Originators for sale hereunder or inclusion in the Trust Fund on any basis adverse to the first Trust Fund relative to the portfolio of similar mortgage loans of the Unaffiliated Seller or second priority lien the Originators;
(s) None of the Mortgage in the original principal amount of the Mortgage Loan, subject to the exceptions contained in such policy. The Originator is the sole insured of such mortgagee title insurance policy, and such mortgagee title insurance policy is in full force and effect and will be in force and effect upon the consummation of the transactions contemplated by this Agreement. Neither the Originator nor any affiliate of the Originator has made, and the Originator has no knowledge of, any claims under such mortgagee title insurance policy. The Originator is not aware of any action by Loans constitutes a prior holder and neither the Originator nor any affiliate of the Originator has done, by act or omission, anything which could impair the coverage or enforceability of such mortgagee title insurance policy or the accuracy of such attorney's opinion of titlelien on leasehold interests;
(16t) There is no material default, breach, violation or event of acceleration existing under the related Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration, other than a payment delinquency that is for a payment due after the date specified in (i) above. None of the Originator, the Obligor, any Seller Trust or any affiliate of the Originator or any Seller Trust has waived any default, breach, violation or event of acceleration;
(17) With respect to any Mortgage Loan which provides for an adjustable interest rate, all rate adjustments have been performed in accordance with the terms of the related Mortgage Note or subsequent modifications, if any;
(18) To the Originator’s knowledge, there are no delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, including assessments payable in future installments or other outstanding charges, affecting the related Mortgaged Property;
(19) As of the Cut-off Date, no foreclosure proceedings are pending against the Mortgaged Property and the Mortgage Loan is not subject to any pending bankruptcy or insolvency proceeding, and to the Originator’s best knowledge, no material litigation or lawsuit relating to the Mortgage Loan is pending;
(20) The Mortgaged Property for each Mortgage Loan is insured under a hazard insurance policy (“Hazard Insurance”) in an amount at least equal to the lesser of (i) the maximum insurable value of such improvements or (ii) the principal balance of the Mortgage Loan with a standard mortgagee clause, in either case in an amount sufficient to avoid the application of any “co-insurance provisions,” and, if it was in place at origination of the Mortgage Loan, flood insurance, at the mortgagor's cost and expense. If the Mortgaged Property is in an area identified in the Federal Register by the Federal Emergency Management Agency (“FEMA”) as having special flood hazards, a flood insurance policy is in effect which met the requirements of FEMA at the time such policy was issued. The Mortgage obligates the Mortgagor to maintain the Hazard Insurance, and, if applicable, flood insurance policy at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at the Mortgagor's cost and expense, and to seek reimbursement therefor from the Mortgagor;
(21) The Mortgage Note is not and has not been secured by any collateral except the lien of the corresponding Mortgage and the security interest of any applicable security agreement or chattel mortgage;
(22) 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. The Each Mortgage contains customary and enforceable provisions such as to which render the rights and remedies of the holder thereof adequate for the realization against the related Mortgaged Property of the benefits of the security provided thereby, including (iA) in the case of a Mortgage designated as a deed of trust, by trustee's sale and (iiB) otherwise by judicial foreclosure. Since To the date of origination best of the Mortgage Loan, the Mortgaged Property has not been subject to any bankruptcy proceeding or foreclosure proceeding Unaffiliated Seller's and the Mortgagor has not filed for protection under applicable bankruptcy laws. There Originators' knowledge, there is no homestead or other exemption available to the related Mortgagor that which would materially interfere with the right to sell the related Mortgaged Property at a trustee's sale or the right to foreclose the Mortgage. In the event the Mortgage constitutes a deed of trust, a trustee, duly qualified under applicable law to serve as such, as been properly designated and currently so serves and is named in the Mortgage, and no fees or expenses are or will become payable by Purchaser to the trustee under the deed of trust, except in connection with a trustee's sale after default by the related Mortgagor. The Mortgagor has not notified the Originator or any affiliate of the Originator and the Originator has no knowledge of any relief requested or allowed to the Mortgagor under the Servicemembers Civil Relief Act;
(23) Except as set forth in the appraisal which forms part of the related Mortgage File, the Mortgaged Property, normal wear and tear excepted, is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty so as to affect materially and adversely the value of the Mortgaged Property as security for the Mortgage Loan or the use for which the premises were intended;
(24) To the Originator’s knowledge, there was no fraud involved in the origination of the Mortgage Loan by the mortgagee or by the Mortgagor, any appraiser or any other party involved in the origination of the Mortgage Loan;
(25) Each Mortgage File contains an appraisal of the Mortgaged Property indicating the appraised value at the time of origination for such Mortgaged Property. Each appraisal has been performed in accordance with the provisions of the Financial Institutions Reform, Recovery and Enforcement Act of 1989;
(26) To the best of the Originator’s knowledge, all parties which have had any interest in the Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the period in which they held and disposed of such interest, were) in compliance with any and all applicable “doing business” and licensing requirements of the laws of the state wherein the Mortgaged Property is located;
(27) No improvements on the related Mortgaged Property (upon which value was given) encroach on adjoining properties (and in the case of a condominium unit, such improvements are within the project with respect to that unit), and no improvements on adjoining properties encroach upon the Mortgaged Property unless there exists in the Mortgage File a title Policy with endorsements which insure against losses sustained by the insured as a result of such encroachments;
(28) Each Mortgage Loan was originated or acquired by a savings and loan association, a savings bank, a commercial bank or similar banking institution which is supervised and examined by a federal or state authority, or by a mortgagee approved by the Secretary of HUD. Each Mortgage Loan was originated substantially in accordance with the Originator's underwriting criteria, which are at least as stringent as the underwriting criteria set forth in the Prospectus Supplement. Each Mortgage Loan is currently being serviced by the Originator and has been serviced by the Originator since the date of origination of such Mortgage Loan;related
Appears in 1 contract
Samples: Unaffiliated Seller's Agreement (American Business Financial Services Inc /De/)
Representations and Warranties Relating to the Mortgage Loans. The Unaffiliated Seller represents and warrants to the Depositor, as of the Closing Date, as to each Mortgage Loan, that immediately prior to the sale and transfer of the relevant Mortgage Loans on such date by the Unaffiliated Seller to the Depositor and immediately prior to the sale of the Mortgage Loans from the Depositor to the Trust pursuant to the Sale and Servicing Agreement and the pledge thereof by the Trust to the Indenture Trustee pursuant to the Indenture:
(a) The Originator and the Obligor hereby represent and warrant information with respect to each Mortgage Loan set forth in the Schedule of Mortgage Loans is true and correct as of the related Cut-off Date;
(b) All of the original or certified documentation required to be delivered to the Trust, pursuant to the Sale and Servicing Agreement (including all material documents related thereto) with respect to each Mortgage Loan has been or will be delivered to the Indenture Trustee, in accordance with the terms of such Sale and Servicing Agreement. Each of the documents and instruments specified to be included therein has been duly executed and in due and proper form, and each such document or instrument is in a form generally acceptable to prudent mortgage lenders that regularly originate or purchase mortgage loans comparable to the Mortgage Loans for sale to prudent investors in the Purchaser secondary market that invest in mortgage loans such as of the Closing Date or as of such date specifically provided herein:
(1) The applicable Seller has good title to and is the sole owner and holder of the related Mortgage Loans;
(2) Immediately prior to the transfer and assignment to the Purchaser, the Mortgage Notes and the Mortgage Loans were not subject to an assignment or pledge, and the applicable Seller has full right and authority to sell and assign the related Mortgage Loans;
(3) The applicable Seller is transferring the related Mortgage Loan to the Purchaser free and clear of any and all liens, pledges, charges or security interests of any nature encumbering the Mortgage Loans;
(4c) The information set forth Except as otherwise disclosed on the Mortgage Loan Schedule, each Schedule Mortgaged Property is true improved by a single (one-to-four) family residential dwelling, which may include condominiums, townhouses and correct units in all material respects as of the Cut-off Date planned unit developments, or such other date as may be indicated in such schedulemanufactured housing, but shall not include cooperatives;
(5d) The No Mortgage Loan has been acquired, serviced, collected and otherwise dealt with by the Originator and any affiliate had an original Loan-to-Value Ratio in excess of the Originator in compliance with all applicable federal, state and local laws and regulations and the terms of the related Mortgage Note and Mortgage140%;
(6e) The related Mortgage Note and Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(7) The related Each Mortgage is a valid and enforceable subsisting first or second junior lien of record on the related Mortgaged Property, which Mortgaged Property is free and clear of subject in all encumbrances and liens (including mechanics liens) having priority over cases to the first or second lien of the Mortgage except for: (i) liens for real estate taxes and assessments not yet due and payable; (ii) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected or considered title set forth in the lender's title insurance policy delivered policy, with respect to the originator of the Mortgage Loan and referred to in the appraisal made in connection with the origination of the related Mortgage Loan, (iii) which exceptions are generally acceptable to banking institutions in connection with their regular mortgage lending activities, and such other matters exceptions to which like similar properties are commonly subject and which do not individually, or in the aggregate, materially interfere with and adversely affect the benefits of the security intended to be provided by such Mortgage and (iv) the first lien on the Mortgaged Property, in the case of the Mortgages that are second liensMortgage;
(8) Any security agreementf) Immediately prior to the transfer and assignment herein contemplated, chattel mortgage or equivalent document related to such the Unaffiliated Seller held good and indefeasible title to, and was the sole owner of, each Mortgage Loan establishes conveyed by it subject to no Liens, except Liens which will be released simultaneously with such transfer and creates a valid assignment and enforceable first or second lien on immediately upon the Mortgaged Propertysale and assignment herein contemplated, the Depositor will hold good and infeasible title to, and will be the sole owner of each Mortgage Loans subject to no liens, except Liens which will be released simultaneously with such sale and assignment;
(9g) As of the last calendar day of March 2007, none of the Mortgage Loans are Delinquent.
(10) None of the Originator, the Obligor or any Seller Trust has advanced funds, or induced, solicited or knowingly received any advance of funds by a party other than the Mortgagor, directly or indirectly, for the payment of any amount required under the Mortgage Loan;
(11) None of the Originator, the Obligor or any Seller Trust has impaired, waived, altered or modified the related Mortgage or Mortgage Note in any material respect, or satisfied, canceled, rescinded or subordinated such Mortgage or Mortgage Note in whole or in part or released all or any material portion of the Mortgaged Property from the lien of the Mortgage, or executed any instrument of release, cancellation, rescission or satisfaction of the Mortgage Note or Mortgage;
(12) As of the Cut-off Date, the Mortgage has not been satisfied, canceled or subordinated, in whole or in part, or rescinded, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part (except for a release that does not materially impair the security of the no Mortgage Loan is 30 or a release the effect of which is reflected in the Loan-to-Value Ratio or combined Loan-to-Value Ratio for the Mortgage Loan as set forth in the Schedule of Mortgage Loans), nor has any instrument been executed that would effect any such release, cancellation, subordination or rescissionmore days delinquent;
(13h) No Mortgage Loan There is subject to no delinquent tax or assessment lien on any Mortgaged Property, and each Mortgaged Property is free of substantial damage and is in good repair;
(i) There is no valid and enforceable right of rescission, set-offoffset, defense or counterclaim to any Mortgage Note or defenseMortgage, including the obligation of the related Mortgagor to pay the unpaid principal of or interest on such Mortgage Note or the defense of usury, nor will the operation of any of the terms of any the Mortgage Note or the Mortgage, or the exercise of any right thereunder, render either the Mortgage Note or the Mortgage unenforceable in whole or in part, or subject to any right 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;
(14j) To the Originator’s knowledge, there There is no proceeding pending mechanics' lien or claim for the total work, labor or partial condemnation and no eminent domain proceedings pending material affecting any Mortgaged PropertyProperty which is or may be a lien prior to, or equal with, the lien of the related Mortgage except those which are insured against by any title insurance policy referred to in paragraph (l) below;
(15k) Each Mortgage Loan is covered by either at the time it was made complied in all material respects with all applicable state and federal laws and regulations, including, without limitation, the federal Truth-in-Lending Act and other consumer protection laws, real estate settlement procedure, usury, equal credit opportunity, disclosure and recording laws;
(il) a mortgage title insurance policy or other generally acceptable form of insurance policy customary in the jurisdiction where the Mortgaged Property is located together with an adjustable rate rider if applicable or (ii) if generally acceptable in the jurisdiction where the Mortgaged Property is located, an attorney's opinion of title given by an attorney licensed to practice law in the jurisdiction where the Mortgaged Property is located. All of the Originator's rights under such policies, opinions or other instruments shall be transferred and assigned to Purchaser upon sale and assignment of Except for the Mortgage Loans hereunder. The as to which the policies under which they were originated, no title insurance policy has been issued by a title insurer licensed was required, with respect to do business in the jurisdiction where the Mortgaged Property is located, insuring the original lender, its successor and assigns, as to the first or second priority lien of the Mortgage in the original principal amount of the each Mortgage Loan, subject to the exceptions contained in such policy. The Originator is the sole insured of such mortgagee a lender's title insurance policy, and such mortgagee issued in standard American Land Title Association form, or other form acceptable in a particular jurisdiction by a title insurance policy is company authorized to transact business in full force and effect and will be the state in force and effect upon the consummation of the transactions contemplated by this Agreement. Neither the Originator nor any affiliate of the Originator has made, and the Originator has no knowledge of, any claims under such mortgagee title insurance policy. The Originator is not aware of any action by a prior holder and neither the Originator nor any affiliate of the Originator has done, by act or omission, anything which could impair the coverage or enforceability of such mortgagee title insurance policy or the accuracy of such attorney's opinion of title;
(16) There is no material default, breach, violation or event of acceleration existing under the related Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration, other than a payment delinquency that is for a payment due after the date specified in (i) above. None of the Originator, the Obligor, any Seller Trust or any affiliate of the Originator or any Seller Trust has waived any default, breach, violation or event of acceleration;
(17) With respect to any Mortgage Loan which provides for an adjustable interest rate, all rate adjustments have been performed in accordance with the terms of the related Mortgage Note or subsequent modifications, if any;
(18) To the Originator’s knowledge, there are no delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, including assessments payable in future installments or other outstanding charges, affecting the related Mortgaged Property;
(19) As of the Cut-off DateProperty is situated, no foreclosure proceedings are pending against the Mortgaged Property and the Mortgage Loan is not subject to any pending bankruptcy or insolvency proceeding, and to the Originator’s best knowledge, no material litigation or lawsuit relating to the Mortgage Loan is pending;
(20) The Mortgaged Property for each Mortgage Loan is insured under a hazard insurance policy (“Hazard Insurance”) in an amount at least equal to the lesser initial Stated Principal Balance of such Mortgage Loan insuring the mortgagee's interest under the related Mortgage Loan as the holder of a valid first or junior mortgage lien of record on the real property described in the related Mortgage, as the case may be, subject only to exceptions of the character referred to in paragraph (e) above, was effective on the date of the origination of such Mortgage Loan, and, as of the Cut-off Date such policy will be valid and thereafter such policy shall continue in full force and effect;
(m) The improvements upon each Mortgaged Property are covered by a valid and existing hazard insurance policy (which may be a blanket policy of the type described in the related Sale and Servicing Agreement) with a generally acceptable carrier that provides for fire and extended coverage representing coverage not less than the least of (iA) the maximum insurable value of such improvements or (ii) the outstanding principal balance of the related Mortgage Loan with and (B) the minimum amount required to compensate for damage or loss on a standard mortgagee clause, in either case in an amount sufficient to avoid the application of replacement cost basis;
(n) If any “co-insurance provisions,” and, if it was in place at origination of the Mortgage Loan, flood insurance, at the mortgagor's cost and expense. If the Mortgaged Property is in an area identified in the Federal Register by the Federal Emergency Management Agency (“FEMA”) as having special flood hazards, a flood insurance policy (which may be a blanket policy of the type described in the Sale and Servicing Agreement) in a form meeting the requirements of the current guidelines of the Federal Insurance Administration is in effect which met with respect to such Mortgaged Property with a generally acceptable carrier in an amount representing coverage not less than the requirements least of FEMA at (A) the time such policy was issued. The Mortgage obligates the Mortgagor to maintain the Hazard Insurance, and, if applicable, flood insurance policy at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at the Mortgagor's cost and expense, and to seek reimbursement therefor from the Mortgagor;
(21) The Mortgage Note is not and has not been secured by any collateral except the lien of the corresponding Mortgage and the security interest of any applicable security agreement or chattel mortgage;
(22) The Mortgage contains an enforceable provision for the acceleration of the payment of the unpaid outstanding principal balance of the related Mortgage Loan in and (B) the event maximum amount of insurance that is available under the Mortgaged Property Flood Disaster Protection Act of 1973;
(o) Each Mortgage and Mortgage Note is sold or transferred without the prior written consent legal, valid and binding obligation of the Mortgagee thereunder. maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and by general principles of equity (whether considered in a proceeding or action in equity or at law), and all parties to each Mortgage Loan had full legal capacity to execute all documents relating to such Mortgage Loan and convey the estate therein purported to be conveyed;
(p) The Mortgage contains customary Unaffiliated Seller has caused and enforceable provisions such as will cause to render be performed any and all acts required to be performed to preserve the rights and remedies of the holder servicer in any insurance policies applicable to any Mortgage Loans delivered by such Unaffiliated Seller including, to the extent such Mortgage Loan is not covered by a blanket policy described in the Sale and Servicing Agreement, any necessary notifications of insurers, assignments of policies or interests therein, and establishments of co-insured, joint loss payee and mortgagee rights in favor of the servicer; (q) Each original Mortgage was recorded or is in the process of being recorded, and all subsequent assignments of the original Mortgage have been recorded or are in the process of being recorded in the appropriate jurisdictions wherein such recordation is necessary to perfect the lien thereof adequate for the realization against the Mortgaged Property benefit of the benefits Trustee, or the Trust Administrator on behalf of the security provided therebyTrustee, including (i) in the case of a Mortgage designated as a deed of trust, by trustee's sale and (ii) otherwise by judicial foreclosure. Since the date of origination of the Mortgage Loan, the Mortgaged Property has not been subject to any bankruptcy proceeding or foreclosure proceeding and the Mortgagor has not filed for protection under applicable bankruptcy laws. There is no homestead or other exemption available to the Mortgagor that would interfere with the right to sell the Mortgaged Property at a trustee's sale or the right to foreclose the Mortgage. In the event the Mortgage constitutes a deed of trust, a trustee, duly qualified under applicable law to serve as such, as been properly designated and currently so serves and is named in the Mortgage, and no fees or expenses are or will become payable by Purchaser to the trustee under the deed of trust, except in connection with a trustee's sale after default by the related Mortgagor. The Mortgagor has not notified the Originator or any affiliate of the Originator and the Originator has no knowledge of any relief requested or allowed to the Mortgagor under the Servicemembers Civil Relief Act;
(23) Except as set forth in the appraisal which forms part of the related Mortgage File, the Mortgaged Property, normal wear and tear excepted, is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty so as to affect materially and adversely the value of the Mortgaged Property as security for the Mortgage Loan or the use for which the premises were intended;
(24) To the Originator’s knowledge, there was no fraud involved in the origination of the Mortgage Loan by the mortgagee or by the Mortgagor, any appraiser or any other party involved in the origination of the Mortgage Loan;
(25) Each Mortgage File contains an appraisal of the Mortgaged Property indicating the appraised value at the time of origination for such Mortgaged Property. Each appraisal has been performed in accordance with the provisions of the Financial Institutions Reform, Recovery and Enforcement Act of 1989;
(26) To the best Section 2.03 of the Originator’s knowledge, all parties which have had any interest in the Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the period in which they held Sale and disposed of such interest, were) in compliance with any and all applicable “doing business” and licensing requirements of the laws of the state wherein the Mortgaged Property is locatedServicing Agreement;
(27) No improvements on the related Mortgaged Property (upon which value was given) encroach on adjoining properties (and in the case of a condominium unit, such improvements are within the project with respect to that unit), and no improvements on adjoining properties encroach upon the Mortgaged Property unless there exists in the Mortgage File a title Policy with endorsements which insure against losses sustained by the insured as a result of such encroachments;
(28) Each Mortgage Loan was originated or acquired by a savings and loan association, a savings bank, a commercial bank or similar banking institution which is supervised and examined by a federal or state authority, or by a mortgagee approved by the Secretary of HUD. Each Mortgage Loan was originated substantially in accordance with the Originator's underwriting criteria, which are at least as stringent as the underwriting criteria set forth in the Prospectus Supplement. Each Mortgage Loan is currently being serviced by the Originator and has been serviced by the Originator since the date of origination of such Mortgage Loan;
Appears in 1 contract
Samples: Unaffiliated Seller's Agreement (Prudential Securities Secured Financing Corp)
Representations and Warranties Relating to the Mortgage Loans. (a) The Originator and the Obligor hereby represent and warrant with respect to the Mortgage Loans to the Purchaser and the Certificate Insurer that as of the Closing Date or as of such date specifically provided herein:
(1) The applicable Seller has good title to and is the sole owner and holder of the related Mortgage Loans;
(2) Immediately prior to the transfer and assignment to the Purchaser, the Mortgage Notes and the Mortgage Loans were not subject to an assignment or pledge, and the applicable Seller has full right and authority to sell and assign the related Mortgage Loans;
(3) The applicable Seller is transferring the related Mortgage Loan to the Purchaser free and clear of any and all liens, pledges, charges or security interests of any nature encumbering the Mortgage Loans;
(4) The information set forth on each Mortgage Loan Schedule is true and correct in all material respects as of the Cut-off Date or such other date as may be indicated in such schedule;
(5) The Mortgage Loan has been acquired, serviced, collected and otherwise dealt with by the Originator and any affiliate of the Originator in compliance with all applicable federal, state and local laws and regulations and the terms of the related Mortgage Note and Mortgage;
(6) The related Mortgage Note and Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(7) The related Mortgage is a valid and enforceable first or second lien on the related Mortgaged Property, which Mortgaged Property is free and clear of all encumbrances and liens (including mechanics liens) having priority over the first or second lien of the Mortgage except for: (i) liens for real estate taxes and assessments not yet due and payable; (ii) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally or specifically reflected or considered in the lender's title insurance policy delivered to the originator of the Mortgage Loan and referred to in the appraisal made in connection with the origination of the related Mortgage Loan, (iii) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by such Mortgage and (iv) the first lien on the Mortgaged Property, in the case of the Mortgages that are second liens;
(8) Any security agreement, chattel mortgage or equivalent document related to such Mortgage Loan establishes and creates a valid and enforceable first or second lien on the Mortgaged Property;
(9) As of the last calendar day of March 2007, none of the Mortgage Loans are Delinquent and none of the Covered Mortgage Loans are Delinquent.
(10) None of the Originator, the Obligor or any Seller Trust has advanced funds, or induced, solicited or knowingly received any advance of funds by a party other than the Mortgagor, directly or indirectly, for the payment of any amount required under the Mortgage Loan;
(11) None of the Originator, the Obligor or any Seller Trust has impaired, waived, altered or modified the related Mortgage or Mortgage Note in any material respect, or satisfied, canceled, rescinded or subordinated such Mortgage or Mortgage Note in whole or in part or released all or any material portion of the Mortgaged Property from the lien of the Mortgage, or executed any instrument of release, cancellation, rescission or satisfaction of the Mortgage Note or Mortgage;
(12) As of the Cut-off Date, the Mortgage has not been satisfied, canceled or subordinated, in whole or in part, or rescinded, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part (except for a release that does not materially impair the security of the Mortgage Loan or a release the effect of which is reflected in the Loan-to-Value Ratio or combined Loan-to-Value Ratio for the Mortgage Loan as set forth in the Schedule of Mortgage LoansLoan Schedule), nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(13) No Mortgage Loan is subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, nor will the operation of any of the terms of any Mortgage Note or Mortgage, or the exercise of any right thereunder, render either the Mortgage Note or 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;
(14) To the Originator’s knowledge, there is no proceeding pending for the total or partial condemnation and no eminent domain proceedings pending affecting any Mortgaged Property;
(15) Each Mortgage Loan is covered by either (i) a mortgage title insurance policy or other generally acceptable form of insurance policy customary in the jurisdiction where the Mortgaged Property is located together with an adjustable rate rider if applicable or (ii) if generally acceptable in the jurisdiction where the Mortgaged Property is located, an attorney's opinion of title given by an attorney licensed to practice law in the jurisdiction where the Mortgaged Property is located. All of the Originator's rights under such policies, opinions or other instruments shall be transferred and assigned to Purchaser upon sale and assignment of the Mortgage Loans hereunder. The title insurance policy has been issued by a title insurer licensed to do business in the jurisdiction where the Mortgaged Property is located, insuring the original lender, its successor and assigns, as to the first or second priority lien of the Mortgage in the original principal amount of the Mortgage Loan, subject to the exceptions contained in such policy. The Originator is the sole insured of such mortgagee title insurance policy, and such mortgagee title insurance policy is in full force and effect and will be in force and effect upon the consummation of the transactions contemplated by this Agreement. Neither the Originator nor any affiliate of the Originator has made, and the Originator has no knowledge of, any claims under such mortgagee title insurance policy. The Originator is not aware of any action by a prior holder and neither the Originator nor any affiliate of the Originator has done, by act or omission, anything which could impair the coverage or enforceability of such mortgagee title insurance policy or the accuracy of such attorney's opinion of title;
(16) There is no material default, breach, violation or event of acceleration existing under the related Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration, other than a payment delinquency that is for a payment due after the date specified in (i) above. None of the Originator, the Obligor, any Seller Trust or any affiliate of the Originator Originator, the Obligor or any Seller Trust has waived any default, breach, violation or event of acceleration;
(17) With respect to any Mortgage Loan which provides for an adjustable interest rate, all rate adjustments have been performed in accordance with the terms of the related Mortgage Note or subsequent modifications, if any;
(18) To the Originator’s knowledge, there are no defaults in complying with the terms of the mortgage and there are no delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, including assessments payable in future installments or other outstanding charges, affecting the related Mortgaged Property;
(19) As of the Cut-off Date, no foreclosure proceedings are pending against the Mortgaged Property and the Mortgage Loan is not subject to any pending bankruptcy or insolvency proceeding, and to the Originator’s best knowledge, no material litigation or lawsuit relating to the Mortgage Loan is pending;
(20) The Mortgaged Property for each Mortgage Loan is insured under a hazard insurance policy (“Hazard Insurance”) in an amount at least equal to the lesser of (i) the maximum insurable value of such improvements or (ii) the principal balance of the Mortgage Loan with a standard mortgagee clause, in either case in an amount sufficient to avoid the application of any “co-insurance provisions,” and, if it was in place at origination of the Mortgage Loan, flood insurance, at the mortgagor's cost and expense. If the Mortgaged Property is in an area identified in the Federal Register by the Federal Emergency Management Agency (“FEMA”) as having special flood hazards, a flood insurance policy is in effect which met the requirements of FEMA at the time such policy was issued. The Mortgage obligates the Mortgagor to maintain the Hazard Insurance, and, if applicable, flood insurance policy at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at the Mortgagor's cost and expense, and to seek reimbursement therefor from the Mortgagor. The Company has not engaged in, and has no knowledge of the Mortgagor’s or any servicer’s having engaged in, any act or omission which would impair the coverage of the Mortgage Loans under the pool policy, the benefits of the endorsement provided for herein, or the validity and binding effect of such policy, without limitation, and the Company has no knowledge of an unlawful fee, commission, kickback or other unlawful compensation or value of any kind received, retained or realized by any attorney, firm or other person or entity, and no such unlawful items have been received, retained or realized by the Company;
(21) The Mortgage Note is not and has not been secured by any collateral except the lien of the corresponding Mortgage and the security interest of any applicable security agreement or chattel mortgage;
(22) 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. The Mortgage contains customary and enforceable provisions such as to render the rights and remedies of the holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security provided thereby, including (i) in the case of a Mortgage designated as a deed of trust, by trustee's sale and (ii) otherwise by judicial foreclosure. Since the date of origination of the Mortgage Loan, the Mortgaged Property has not been subject to any bankruptcy proceeding or foreclosure proceeding and the Mortgagor has not filed for protection under applicable bankruptcy laws. There is no homestead or other exemption available to the Mortgagor that would interfere with the right to sell the Mortgaged Property at a trustee's sale or the right to foreclose the Mortgage. In the event the Mortgage constitutes a deed of trust, a trustee, duly qualified under applicable law to serve as such, as been properly designated and currently so serves and is named in the Mortgage, and no fees or expenses are or will become payable by Purchaser to the trustee under the deed of trust, except in connection with a trustee's sale after default by the related Mortgagor. The Mortgagor has not notified the Originator or any affiliate of the Originator and the Originator has no knowledge of any relief requested or allowed to the Mortgagor under the Servicemembers Civil Relief Act;
(23) Except as set forth in the appraisal which forms part of the related Mortgage File, the Mortgaged Property, normal wear and tear excepted, is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty so as to affect materially and adversely the value of the Mortgaged Property as security for the Mortgage Loan or the use for which the premises were intended;
(24) To the Originator’s knowledge, there was no fraud involved in the origination of the Mortgage Loan by the mortgagee or by the Mortgagor, any appraiser or any other party involved in the origination of the Mortgage Loan;
(25) Each Mortgage File contains an appraisal of the Mortgaged Property indicating the appraised value at the time of origination for such Mortgaged Property. Each appraisal has been performed in accordance with the provisions of the Financial Institutions Reform, Recovery and Enforcement Act of 1989;
(26) To the best of the Originator’s knowledge, all parties which have had any interest in the Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the period in which they held and disposed of such interest, were) in compliance with any and all applicable “doing business” and licensing requirements of the laws of the state wherein the Mortgaged Property is located;
(27) No improvements on the related Mortgaged Property (upon which value was given) encroach on adjoining properties (and in the case of a condominium unit, such improvements are within the project with respect to that unit), and no improvements on adjoining properties encroach upon the Mortgaged Property unless there exists in the Mortgage File a title Policy with endorsements which insure against losses sustained by the insured as a result of such encroachments;
(28) Each Mortgage Loan was originated or acquired by a savings and loan association, a savings bank, a commercial bank or similar banking institution which is supervised and examined by a federal or state authority, or by a mortgagee approved by the Secretary of HUD. Each Mortgage Loan was originated substantially in accordance with the Originator's underwriting criteria, which are at least as stringent as the underwriting criteria set forth in the Prospectus Supplement. Each Mortgage Loan is currently being serviced by the Originator and has been serviced by the Originator since the date of origination of such Mortgage Loan;
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Option One Mortgage Loan Trust 2007-Hl1)
Representations and Warranties Relating to the Mortgage Loans. (a) The Originator and the Obligor hereby Originators represent and warrant with respect to the Mortgage Loans Unaffiliated Seller and the Unaffiliated Seller represents to the Purchaser that Depositor that, as of the Closing Date or Date, as to each Initial Mortgage Loan, and as of the Subsequent Transfer Date, as to each Subsequent Mortgage Loan, immediately prior to the sale and transfer of such date specifically provided hereinMortgage Loan by the Unaffiliated Seller to the Depositor:
(1) The applicable Seller has good title to and is the sole owner and holder of the related Mortgage Loans;
(2) Immediately prior to the transfer and assignment to the Purchaser, the Mortgage Notes and the Mortgage Loans were not subject to an assignment or pledge, and the applicable Seller has full right and authority to sell and assign the related Mortgage Loans;
(3) The applicable Seller is transferring the related Mortgage Loan to the Purchaser free and clear of any and all liens, pledges, charges or security interests of any nature encumbering the Mortgage Loans;
(4a) The information set forth on in each Mortgage Loan Schedule is complete, true and correct;
(b) The information to be provided by the Unaffiliated Seller or the Originators, directly or indirectly, to the Depositor in connection with a Subsequent Mortgage Loan will be true and correct in all material respects as of at the Cut-off Date date or dates respecting which such other date as may be indicated in such scheduleinformation is furnished;
(5c) The Mortgage Loan has been acquired, serviced, collected and otherwise dealt with by the Originator and any affiliate of the Originator in compliance with all applicable federal, state and local laws and regulations and the terms of the related Mortgage Note and Mortgage;
(6) The related Mortgage Note and Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(7) The related Each Mortgage is a valid and enforceable first or second lien on a fee simple (or its equivalent under applicable state law) estate in the related Mortgaged Property, which Mortgaged Property is free and clear of all encumbrances and liens (including mechanics liens) having priority over real property securing the first or second lien of amount owed by the Mortgagor under the Mortgage except for: Note subject only to (i) liens for the lien of current real estate property taxes and assessments which are not yet due and payable; delinquent, (ii) with respect to any Mortgage Loan identified on the Mortgage Loan Schedule as secured by a second lien, the related first mortgage loan, (iii) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally in the area wherein the property subject to the Mortgage is located or specifically reflected or considered in the lender's title insurance policy delivered to the originator of the Mortgage Loan and referred to in the appraisal made obtained in connection with the origination of the related Mortgage Loan, Loan obtained by the Unaffiliated Seller and (iiiiv) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by such Mortgage and (iv) the first lien on the Mortgaged Property, in the case of the Mortgages that are second liensMortgage;
(8) Any security agreementd) Immediately prior to the transfer and assignment by the related Originator to the Unaffiliated Seller and by the Unaffiliated Seller to the Depositor, chattel mortgage the Unaffiliated Seller or equivalent document such Originator, as applicable, had good title to, and was the sole owner of each Mortgage Loan, free of any interest of any other Person, and the Unaffiliated Seller or such Originator has transferred all right, title and interest in each Mortgage Loan to the Depositor or the Unaffiliated Seller, as applicable;
(e) As of the applicable Cut-Off Date, no payment of principal or interest on or in respect of any Mortgage Loan remains unpaid for thirty (30) or more days past the date the same was due in accordance with the related Mortgage Note without regard to applicable grace periods;
(f) As of the Initial Cut-Off Date, no Mortgage Loan has a Mortgage Interest Rate less than 8.24% per annum in Pool I and 7.50% per annum in Pool II and the weighted average Mortgage Interest Rate of the Mortgage Loans is 11.04% in Pool I and 11.49% in Pool II;
(g) At origination, no Mortgage Loan in Pool I or Pool II had an original term to maturity of greater than 360 months;
(h) As of the Initial Cut-Off Date, the weighted average remaining term to maturity of the Mortgage Loans is 266 months for the Mortgage Loans in Pool I and 244 months for the Mortgage Loans in Pool II;
(i) To the best knowledge of the Unaffiliated Seller and each of the Originators, there is no mechanics' lien or claim for work, labor or material (and no rights are outstanding that under law could give rise to such lien) affecting the premises subject to any Mortgage Loan establishes which is or may be a lien prior to, or equal or coordinate with, the lien of such Mortgage, except those which are insured against by the title insurance policy referred to in (ff) below;
(j) To the best knowledge of the Unaffiliated Seller and creates a valid and enforceable first each of the Originators, there is no delinquent tax or second assessment lien on the against any Mortgaged Property;
(9k) As of the last calendar day of March 2007, none of the Mortgage Loans are Delinquent.
(10) None of the Originator, the Obligor or any Seller Trust has advanced funds, or induced, solicited or knowingly received any advance of funds by a party other than the Mortgagor, directly or indirectly, for the payment of any amount required under the Such Mortgage Loan;
(11) None of the Originator, the Obligor or any Seller Trust has impaired, waived, altered or modified the related Mortgage or Mortgage Note in any material respect, or satisfied, canceled, rescinded or subordinated such Mortgage or Mortgage Note in whole or in part or released all or any material portion of the Mortgaged Property from the lien of the Mortgage, or executed any instrument of releaseand the Mortgage Note, cancellationincluding, rescission or satisfaction without limitation, the obligation of the Mortgage Note or Mortgage;
(12) As Mortgagor to pay the unpaid principal of the Cut-off Date, and interest on the Mortgage has Note, are each not been satisfied, canceled or subordinated, in whole or in part, or rescinded, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part (except for a release that does not materially impair the security of the Mortgage Loan or a release the effect of which is reflected in the Loan-to-Value Ratio or combined Loan-to-Value Ratio for the Mortgage Loan as set forth in the Schedule of Mortgage Loans), nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(13) No Mortgage Loan is subject to any right of rescissionrescission (or any such rescission right has expired in accordance with applicable law), set-off, counterclaim counterclaim, or defense, including the defense of usury, nor will the operation of any of the terms of any the Mortgage Note or the Mortgage, or the exercise of any right thereunder, render either the Mortgage Note or the Mortgage unenforceable unenforceable, in whole or in part, or subject to any right of rescission, set-off, counterclaim counterclaim, or defense, including the defense of usury, and no such right of rescission, set-off, counterclaim counterclaim, or defense has been asserted with respect thereto;
(14l) To the Originator’s knowledgebest knowledge of the Unaffiliated Seller and each of the Originators, the Mortgaged Property is free of material damage and is in good repair, and there is no pending or threatened proceeding pending for the total or partial condemnation and no eminent domain proceedings pending affecting any of the Mortgaged Property;
(15m) Neither the Originators nor the Unaffiliated Seller has received a notice of default of any first mortgage loan secured by the Mortgaged Property which has not been cured by a party other than the Unaffiliated Seller;
(n) Each Mortgage Note and Mortgage are in substantially the forms previously provided to the Depositor and the Indenture Trustee on behalf of the Unaffiliated Seller;
(o) No Mortgage Loan had, at the date of origination, a CLTV in excess of 100%, and the weighted average CLTV of all Mortgage Loans as of the Initial Cut-Off Date is covered by either approximately 78.98% in Pool I and 73.43% in Pool II;
(ip) The Mortgage Loan was not originated in a mortgage title insurance policy or other generally acceptable form program in which the amount of insurance policy customary documentation in the jurisdiction where underwriting process was limited in comparison to the Mortgaged Property is located together with an adjustable rate rider if applicable or originator's normal documentation requirements;
(iiq) if generally acceptable in No more than the jurisdiction where the Mortgaged Property is located, an attorney's opinion of title given by an attorney licensed to practice law in the jurisdiction where the Mortgaged Property is located. All of the Originator's rights under such policies, opinions or other instruments shall be transferred and assigned to Purchaser upon sale and assignment following percentages of the Mortgage Loans hereunder. The title insurance policy has been issued by a title insurer licensed to do business Cut-Off Date Aggregate Principal Balance are secured by Mortgaged Properties located in the jurisdiction where following states: Pool I --------------------------------------------------------------------- Percentage of Cut-Off Date Aggregate State Principal Balance ------------------------------- ------------------------------ California 0.12% Connecticut 1.62 Delaware 2.45 Florida 7.65 Georgia 7.49 Illinois 4.50 Indiana 0.05 Kentucky 0.16 Maine 0.05 Maryland 2.42 Michigan 0.02 Mississippi 0.52 New Jersey 29.78 New York 23.88 North Carolina 1.20 Ohio 1.80 Pennsylvania 14.10 South Carolina 0.17 Tennessee 0.24 Virginia 1.51 West Virginia 0.24 ---------------------- 100.00% ====================== Pool II --------------------------------------------------------------------- Percentage of Cut-Off Date Aggregate State Principal Balance ------------------------------- ------------------------------ Arizona 0.08 Colorado 0.09 Connecticut 2.45 Delaware 1.88 Florida 9.19 Georgia 10.37 Illinois 5.43 Indiana 0.47 Kentucky 0.41 Maryland 1.70 Michigan 0.13 Mississippi 0.80 Missouri 0.06 Nebraska 0.37 New Jersey 20.78 New York 17.73 North Carolina 1.75 Ohio 1.98 Pennsylvania 21.11 South Carolina 0.45 Tennessee 0.50 Vermont 0.07 Virginia 1.87 West Virginia 0.33 ---------------------- 100.00% ======================
(r) The Mortgage Loans were not selected by the Mortgaged Property is located, insuring Unaffiliated Seller or the original lender, its successor and assigns, as Originators for sale hereunder or inclusion in the Trust Estate on any basis adverse to the first Trust Estate relative to the portfolio of similar mortgage loans of the Unaffiliated Seller or second priority lien the Originators;
(s) None of the Mortgage in the original principal amount of the Mortgage Loan, subject to the exceptions contained in such policy. The Originator is the sole insured of such mortgagee title insurance policy, and such mortgagee title insurance policy is in full force and effect and will be in force and effect upon the consummation of the transactions contemplated by this Agreement. Neither the Originator nor any affiliate of the Originator has made, and the Originator has no knowledge of, any claims under such mortgagee title insurance policy. The Originator is not aware of any action by Loans constitutes a prior holder and neither the Originator nor any affiliate of the Originator has done, by act or omission, anything which could impair the coverage or enforceability of such mortgagee title insurance policy or the accuracy of such attorney's opinion of titlelien on leasehold interests;
(16t) There is no material default, breach, violation or event of acceleration existing under the related Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration, other than a payment delinquency that is for a payment due after the date specified in (i) above. None of the Originator, the Obligor, any Seller Trust or any affiliate of the Originator or any Seller Trust has waived any default, breach, violation or event of acceleration;
(17) With respect to any Mortgage Loan which provides for an adjustable interest rate, all rate adjustments have been performed in accordance with the terms of the related Mortgage Note or subsequent modifications, if any;
(18) To the Originator’s knowledge, there are no delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, including assessments payable in future installments or other outstanding charges, affecting the related Mortgaged Property;
(19) As of the Cut-off Date, no foreclosure proceedings are pending against the Mortgaged Property and the Mortgage Loan is not subject to any pending bankruptcy or insolvency proceeding, and to the Originator’s best knowledge, no material litigation or lawsuit relating to the Mortgage Loan is pending;
(20) The Mortgaged Property for each Mortgage Loan is insured under a hazard insurance policy (“Hazard Insurance”) in an amount at least equal to the lesser of (i) the maximum insurable value of such improvements or (ii) the principal balance of the Mortgage Loan with a standard mortgagee clause, in either case in an amount sufficient to avoid the application of any “co-insurance provisions,” and, if it was in place at origination of the Mortgage Loan, flood insurance, at the mortgagor's cost and expense. If the Mortgaged Property is in an area identified in the Federal Register by the Federal Emergency Management Agency (“FEMA”) as having special flood hazards, a flood insurance policy is in effect which met the requirements of FEMA at the time such policy was issued. The Mortgage obligates the Mortgagor to maintain the Hazard Insurance, and, if applicable, flood insurance policy at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at the Mortgagor's cost and expense, and to seek reimbursement therefor from the Mortgagor;
(21) The Mortgage Note is not and has not been secured by any collateral except the lien of the corresponding Mortgage and the security interest of any applicable security agreement or chattel mortgage;
(22) 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. The Each Mortgage contains customary and enforceable provisions such as to which render the rights and remedies of the holder thereof adequate for the realization against the related Mortgaged Property of the benefits of the security provided thereby, including (iA) in the case of a Mortgage designated as a deed of trust, by trustee's sale and (iiB) otherwise by judicial foreclosure. Since To the date of origination best of the Mortgage Loan, the Mortgaged Property has not been subject to any bankruptcy proceeding or foreclosure proceeding Unaffiliated Seller's and the Mortgagor has not filed for protection under applicable bankruptcy laws. There Originators' knowledge, there is no homestead or other exemption available to the related Mortgagor that which would materially interfere with the right to sell the related Mortgaged Property at a trustee's sale or the right to foreclose the related Mortgage. In The Mortgage contains customary and enforceable provisions for the acceleration of the payment of the Principal Balance of such Mortgage Loan in the event all or any part of the related Mortgaged Property is sold or otherwise transferred without the prior written consent of the holder thereof; (u) The proceeds of such Mortgage constitutes a deed of trustLoan have been fully disbursed, a trusteeincluding reserves set aside by the Unaffiliated Seller or the Originators, duly qualified under there is no requirement for, and neither the Unaffiliated Seller nor the Originators shall make any, future advances thereunder. Any future advances made prior to the applicable law to serve as such, as Cut-Off Date have been properly designated and currently so serves and is named in consolidated with the principal balance secured by the Mortgage, and no fees or expenses are or will become payable by Purchaser to such principal balance, as consolidated, bears a single interest rate and single repayment term reflected on the trustee under the deed of trust, except in connection with a trustee's sale after default by the related Mortgagorapplicable Mortgage Loan Schedule. The Mortgagor has not notified the Originator or any affiliate Principal Balance as of the Originator and applicable Cut-Off Date does not exceed the Originator has no knowledge of any relief requested or allowed to the Mortgagor under the Servicemembers Civil Relief Act;
(23) Except as set forth in the appraisal which forms part of the related Mortgage File, the Mortgaged Property, normal wear and tear excepted, is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty so as to affect materially and adversely the value of the Mortgaged Property as security for the Mortgage Loan or the use for which the premises were intended;
(24) To the Originator’s knowledge, there was no fraud involved in the origination of the Mortgage Loan by the mortgagee or by the Mortgagor, any appraiser or any other party involved in the origination of the Mortgage Loan;
(25) Each Mortgage File contains an appraisal of the Mortgaged Property indicating the appraised value at the time of origination for such Mortgaged Property. Each appraisal has been performed in accordance with the provisions of the Financial Institutions Reform, Recovery and Enforcement Act of 1989;
(26) To the best of the Originator’s knowledge, all parties which have had any interest in the Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the period in which they held and disposed of such interest, were) in compliance with any and all applicable “doing business” and licensing requirements of the laws of the state wherein the Mortgaged Property is located;
(27) No improvements on the related Mortgaged Property (upon which value was given) encroach on adjoining properties (and in the case of a condominium unit, such improvements are within the project with respect to that unit), and no improvements on adjoining properties encroach upon the Mortgaged Property unless there exists in the Mortgage File a title Policy with endorsements which insure against losses sustained by the insured as a result of such encroachments;
(28) Each Mortgage Loan was originated or acquired by a savings and loan association, a savings bank, a commercial bank or similar banking institution which is supervised and examined by a federal or state authority, or by a mortgagee approved by the Secretary of HUD. Each Mortgage Loan was originated substantially in accordance with the Originator's underwriting criteria, which are at least as stringent as the underwriting criteria set forth in the Prospectus Supplement. Each Mortgage Loan is currently being serviced by the Originator and has been serviced by the Originator since the date of origination original principal amount of such Mortgage Loan. Except with respect to no more than $150,000 of escrow funds, any and all requirements as to completion of any on-site or off-site improvements and as to disbursements of any escrow funds therefor have been complied with. All costs, fees, and expenses incurred in making, or recording such Mortgage Loan have been paid;
Appears in 1 contract
Samples: Unaffiliated Seller's Agreement (Prudential Securities Secured Financing Corp)
Representations and Warranties Relating to the Mortgage Loans. (a) The Originator and the Obligor hereby Originators represent and warrant with respect to the Mortgage Loans Unaffiliated Seller and the Unaffiliated Seller represents to the Purchaser that Depositor that, as of the Closing Date or Date, as to each Initial Mortgage Loan, and as of the Subsequent Transfer Date, as to each Subsequent Mortgage Loan, immediately prior to the sale and transfer of such date specifically provided hereinMortgage Loan by the Unaffiliated Seller to the Depositor:
(1) The applicable Seller has good title to and is the sole owner and holder of the related Mortgage Loans;
(2) Immediately prior to the transfer and assignment to the Purchaser, the Mortgage Notes and the Mortgage Loans were not subject to an assignment or pledge, and the applicable Seller has full right and authority to sell and assign the related Mortgage Loans;
(3) The applicable Seller is transferring the related Mortgage Loan to the Purchaser free and clear of any and all liens, pledges, charges or security interests of any nature encumbering the Mortgage Loans;
(4a) The information set forth on in each Mortgage Loan Schedule is complete, true and correct;
(b) The information to be provided by the Unaffiliated Seller or the Originators, directly or indirectly, to the Depositor in connection with a Subsequent Mortgage Loan will be true and correct in all material respects as of at the Cut-off Date date or dates respecting which such other date as may be indicated in such scheduleinformation is furnished;
(5c) The Mortgage Loan has been acquired, serviced, collected and otherwise dealt with by the Originator and any affiliate of the Originator in compliance with all applicable federal, state and local laws and regulations and the terms of the related Mortgage Note and Mortgage;
(6) The related Mortgage Note and Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(7) The related Each Mortgage is a valid and enforceable first or second lien on a fee simple (or its equivalent under applicable state law) estate in the related Mortgaged Property, which Mortgaged Property is free and clear of all encumbrances and liens (including mechanics liens) having priority over real property securing the first or second lien of amount owed by the Mortgagor under the Mortgage except for: Note subject only to (i) liens for the lien of current real estate property taxes and assessments which are not yet due and payable; delinquent, (ii) with respect to any Mortgage Loan identified on the Mortgage Loan Schedule as secured by a second lien, the related first mortgage loan, (iii) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally in the area wherein the property subject to the Mortgage is located or specifically reflected or considered in the lender's title insurance policy delivered to the originator of the Mortgage Loan and referred to in the appraisal made obtained in connection with the origination of the related Mortgage Loan, Loan obtained by the Unaffiliated Seller and (iiiiv) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by such Mortgage and (iv) the first lien on the Mortgaged Property, in the case of the Mortgages that are second liens;
(8) Any security agreement, chattel mortgage or equivalent document related to such Mortgage Loan establishes and creates a valid and enforceable first or second lien on the Mortgaged Property;
(9) As of the last calendar day of March 2007, none of the Mortgage Loans are Delinquent.
(10) None of the Originator, the Obligor or any Seller Trust has advanced funds, or induced, solicited or knowingly received any advance of funds by a party other than the Mortgagor, directly or indirectly, for the payment of any amount required under the Mortgage Loan;
(11) None of the Originator, the Obligor or any Seller Trust has impaired, waived, altered or modified the related Mortgage or Mortgage Note in any material respect, or satisfied, canceled, rescinded or subordinated such Mortgage or Mortgage Note in whole or in part or released all or any material portion of the Mortgaged Property from the lien of the Mortgage, or executed any instrument of release, cancellation, rescission or satisfaction of the Mortgage Note or Mortgage;
(12d) Immediately prior to the transfer and assignment by the related Originator to the Unaffiliated Seller and by the Unaffiliated Seller to the Trustee, the Unaffiliated Seller or such Originator, as applicable, had good title to, and was the sole owner of each Mortgage Loan, free of any interest of any other Person, and the Unaffiliated Seller or such Originator has transferred all right, title and interest in each Mortgage Loan to the Trustee or the Unaffiliated Seller, as applicable;
(e) As of the Cut-off Off Date, no payment of principal or interest on or in respect of any Mortgage Loan remains unpaid for 30 or more days past the date the same was due in accordance with the related Mortgage Note without regard to applicable grace periods;
(f) As of the Statistical Calculation Date, no Mortgage Loan has a Mortgage Interest Rate less than 7.99% per annum in Mortgage Loan Group I and 8.99% per annum in Mortgage Loan Group II and the weighted average Mortgage Interest Rate of the Mortgage Loans is 11.34% in Mortgage Loan Group I and 12.13% in Mortgage Loan Group II;
(g) At origination, no Mortgage Loan in Mortgage Loan Group I or II had an original term to maturity of greater than 360 months;
(h) As of the Statistical Calculation Date, the weighted average remaining term to maturity of the Mortgage has not been satisfiedLoans is 252 months for the Mortgage Loans in Mortgage Loan Group I and 243 months for the Mortgage Loans in Mortgage Loan Group II;
(i) To the best knowledge of the Unaffiliated Seller and each of the Originators, canceled there is no mechanics' lien or subordinatedclaim for work, in whole labor or in partmaterial (and no rights are outstanding that under law could give rise to such lien) affecting the premises subject to any Mortgage which is or may be a lien prior to, or rescindedequal or coordinate with, the lien of such Mortgage, except those which are insured against by the title insurance policy referred to in (ff) below;
(j) To the best knowledge of the Unaffiliated Seller and each of the Originators, there is no delinquent tax or assessment lien against any Mortgaged Property;
(k) Such Mortgage Loan, the Mortgage, and the Mortgaged Property has not been released from Mortgage Note, including, without limitation, the lien obligation of the Mortgage, in whole or in part (except for a release that does not materially impair Mortgagor to pay the security unpaid principal of and interest on the Mortgage Loan or a release the effect of which is reflected in the Loan-to-Value Ratio or combined Loan-to-Value Ratio for the Mortgage Loan as set forth in the Schedule of Mortgage Loans)Note, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(13) No Mortgage Loan is are each not subject to any right of rescissionrescission (or any such rescission right has expired in accordance with applicable law), set-off, counterclaim counterclaim, or defense, including the defense of usury, nor will the operation of any of the terms of any the Mortgage Note or the Mortgage, or the exercise of any right thereunder, render either the Mortgage Note or the Mortgage unenforceable unenforceable, in whole or in part, or subject to any right of rescission, set-off, counterclaim counterclaim, or defense, including the defense of usury, and no such right of rescission, set-off, counterclaim counterclaim, or defense has been asserted with respect thereto;
(14l) To the Originator’s knowledgebest knowledge of the Unaffiliated Seller and each of the Originators, the Mortgaged Property is free of material damage and is in good repair, and there is no pending or threatened proceeding pending for the total or partial condemnation and no eminent domain proceedings pending affecting any of the Mortgaged Property;
(15m) Neither the Originators nor the Unaffiliated Seller has received a notice of default of any first mortgage loan secured by the Mortgaged Property which has not been cured by a party other than the Unaffiliated Seller;
(n) Each Mortgage Note and Mortgage are in substantially the forms previously provided to the Trustee on behalf of the Unaffiliated Seller;
(o) No Mortgage Loan had, at the date of origination, a Combined Loan-to-Value Ratio in excess of 100%, and the weighted average Combined Loan-to-Value ratio of all Mortgage Loans as of the Statistical Calculation Date is covered by either approximately 76.18% in Mortgage Loan Group I and 72.05% in Mortgage Loan Group II;
(ip) The Mortgage Loan was not originated in a mortgage title insurance policy or other generally acceptable form program in which the amount of insurance policy customary documentation in the jurisdiction where underwriting process was limited in comparison to the Mortgaged Property is located together with an adjustable rate rider if applicable or originator's normal documentation requirements; (iiq) if generally acceptable in No more than the jurisdiction where the Mortgaged Property is located, an attorney's opinion of title given by an attorney licensed to practice law in the jurisdiction where the Mortgaged Property is located. All of the Originator's rights under such policies, opinions or other instruments shall be transferred and assigned to Purchaser upon sale and assignment following percentages of the Mortgage Loans hereunder. The title insurance policy has been issued by a title insurer licensed to do business Principal Balance as of the Statistical Calculation Date are secured by Mortgaged Properties located in the jurisdiction where the Mortgaged Property is located, insuring the original lender, its successor and assigns, as to the first or second priority lien of the Mortgage in the original principal amount of the Mortgage Loan, subject to the exceptions contained in such policy. The Originator is the sole insured of such mortgagee title insurance policy, and such mortgagee title insurance policy is in full force and effect and will be in force and effect upon the consummation of the transactions contemplated by this Agreement. Neither the Originator nor any affiliate of the Originator has made, and the Originator has no knowledge of, any claims under such mortgagee title insurance policy. The Originator is not aware of any action by a prior holder and neither the Originator nor any affiliate of the Originator has done, by act or omission, anything which could impair the coverage or enforceability of such mortgagee title insurance policy or the accuracy of such attorney's opinion of title;
(16) There is no material default, breach, violation or event of acceleration existing under the related Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a material default, breach, violation or event of acceleration, other than a payment delinquency that is for a payment due after the date specified in (i) above. None of the Originator, the Obligor, any Seller Trust or any affiliate of the Originator or any Seller Trust has waived any default, breach, violation or event of acceleration;
(17) With respect to any following states: Mortgage Loan which provides for an adjustable interest rate, all rate adjustments have been performed in accordance with the terms Group II ----------------------------------------------------------- Percent of the related Mortgage Note or subsequent modifications, if any;
(18) To the Originator’s knowledge, there are no delinquent taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, including assessments payable in future installments or other outstanding charges, affecting the related Mortgaged Property;
(19) As of the Cut-off Date, no foreclosure proceedings are pending against the Mortgaged Property and the State Principal Balance -------------------------- -------------------------- Colorado 0.08% Connecticut 1.27 Delaware 2.37 Florida 6.00 Georgia 9.17 Illinois 1.39 Indiana 0.26 Maryland 2.47 Michigan 0.06 Mississippi 1.22 New Jersey 27.54 New York 19.32 North Carolina 0.95 Ohio 1.92 Pennsylvania 23.21 South Carolina 0.27 Tennessee 0.58 Virginia 1.92 ------ 100.00% ====== Mortgage Loan is not subject to any pending bankruptcy or insolvency proceeding, and to the Originator’s best knowledge, no material litigation or lawsuit relating to the Mortgage Loan is pending;
(20) The Mortgaged Property for each Mortgage Loan is insured under a hazard insurance policy (“Hazard Insurance”) in an amount at least equal to the lesser Group II ----------------------------------------------------------- Percent of (i) the maximum insurable value of such improvements or (ii) the principal balance of the Mortgage Loan with a standard mortgagee clause, in either case in an amount sufficient to avoid the application of any “co-insurance provisions,” and, if it was in place at origination of the Mortgage Loan, flood insurance, at the mortgagor's cost and expense. If the Mortgaged Property is in an area identified in the Federal Register by the Federal Emergency Management Agency (“FEMA”) as having special flood hazards, a flood insurance policy is in effect which met the requirements of FEMA at the time such policy was issued. The Mortgage obligates the Mortgagor to maintain the Hazard Insurance, and, if applicable, flood insurance policy at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at the Mortgagor's cost and expense, and to seek reimbursement therefor from the Mortgagor;
(21) The Mortgage Note is not and has not been secured by any collateral except the lien of the corresponding Mortgage and the security interest of any applicable security agreement or chattel mortgage;
(22) 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. The Mortgage contains customary and enforceable provisions such as to render the rights and remedies of the holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security provided thereby, including (i) in the case of a Mortgage designated as a deed of trust, by trustee's sale and (ii) otherwise by judicial foreclosure. Since the date of origination of the Mortgage Loan, the Mortgaged Property has not been subject to any bankruptcy proceeding or foreclosure proceeding and the Mortgagor has not filed for protection under applicable bankruptcy laws. There is no homestead or other exemption available to the Mortgagor that would interfere with the right to sell the Mortgaged Property at a trustee's sale or the right to foreclose the Mortgage. In the event the Mortgage constitutes a deed of trust, a trustee, duly qualified under applicable law to serve as such, as been properly designated and currently so serves and is named in the Mortgage, and no fees or expenses are or will become payable by Purchaser to the trustee under the deed of trust, except in connection with a trustee's sale after default by the related Mortgagor. The Mortgagor has not notified the Originator or any affiliate of the Originator and the Originator has no knowledge of any relief requested or allowed to the Mortgagor under the Servicemembers Civil Relief Act;
(23) Except as set forth in the appraisal which forms part of the related Mortgage File, the Mortgaged Property, normal wear and tear excepted, is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty so as to affect materially and adversely the value of the Mortgaged Property as security for the Mortgage Loan or the use for which the premises were intended;
(24) To the Originator’s knowledge, there was no fraud involved in the origination of the Mortgage Loan by the mortgagee or by the Mortgagor, any appraiser or any other party involved in the origination of the Mortgage Loan;
(25) Each Mortgage File contains an appraisal of the Mortgaged Property indicating the appraised value at the time of origination for such Mortgaged Property. Each appraisal has been performed in accordance with the provisions of the Financial Institutions Reform, Recovery and Enforcement Act of 1989;
(26) To the best of the Originator’s knowledge, all parties which have had any interest in the Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the period in which they held and disposed of such interest, were) in compliance with any and all applicable “doing business” and licensing requirements of the laws of the state wherein the Mortgaged Property is located;
(27) No improvements on the related Mortgaged Property (upon which value was given) encroach on adjoining properties (and in the case of a condominium unit, such improvements are within the project with respect to that unit), and no improvements on adjoining properties encroach upon the Mortgaged Property unless there exists in the Mortgage File a title Policy with endorsements which insure against losses sustained by the insured as a result of such encroachments;
(28) Each Mortgage Loan was originated or acquired by a savings and loan association, a savings bank, a commercial bank or similar banking institution which is supervised and examined by a federal or state authority, or by a mortgagee approved by the Secretary of HUD. Each Mortgage Loan was originated substantially in accordance with the Originator's underwriting criteria, which are at least as stringent as the underwriting criteria set forth in the Prospectus Supplement. Each Mortgage Loan is currently being serviced by the Originator and has been serviced by the Originator since the date of origination of such Mortgage Loan;State Principal Balance -------------------------- -------------------------- Connecticut 3.59% Georgia 12.23 Maryland 2.31 New Jersey 33.88 New York 27.45 Ohio 2.08 Pennsylvania 16.79 Virginia 1.66 ------ 100.00% ======
Appears in 1 contract
Samples: Unaffiliated Seller's Agreement (Prudential Securities Secured Financing Corp)
Representations and Warranties Relating to the Mortgage Loans. (a) The Originator and the Obligor hereby Originators represent and warrant with respect to the Mortgage Loans Unaffiliated Seller and the Unaffiliated Seller represents to the Purchaser that Depositor that, as of the Closing Date or Date, as to each Initial Mortgage Loan, and as of the Subsequent Transfer Date, as to each Subsequent Mortgage Loan, immediately prior to the sale and transfer of such date specifically provided hereinMortgage Loan by the Unaffiliated Seller to the Depositor:
(1) The applicable Seller has good title to and is the sole owner and holder of the related Mortgage Loans;
(2) Immediately prior to the transfer and assignment to the Purchaser, the Mortgage Notes and the Mortgage Loans were not subject to an assignment or pledge, and the applicable Seller has full right and authority to sell and assign the related Mortgage Loans;
(3) The applicable Seller is transferring the related Mortgage Loan to the Purchaser free and clear of any and all liens, pledges, charges or security interests of any nature encumbering the Mortgage Loans;
(4a) The information set forth on in each Mortgage Loan Schedule is complete, true and correct;
(b) The information to be provided by the Unaffiliated Seller to the Depositor in connection with a Subsequent Mortgage Loan will be true and correct in all material respects as of at the Cut-off Date date or dates respecting which such other date as may be indicated in such scheduleinformation is furnished;
(5c) The Mortgage Loan has been acquired, serviced, collected and otherwise dealt with by the Originator and any affiliate of the Originator in compliance with all applicable federal, state and local laws and regulations and the terms of the related Mortgage Note and Mortgage;
(6) The related Mortgage Note and Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(7) The related Each Mortgage is a valid and enforceable first or second lien on a fee simple (or its equivalent under applicable state law) estate in the related Mortgaged Property, which Mortgaged Property is free and clear of all encumbrances and liens (including mechanics liens) having priority over real property securing the first or second lien of amount owed by the Mortgagor under the Mortgage except for: Note subject only to (i) liens for the lien of current real estate property taxes and assessments which are not yet due and payable; delinquent, (ii) any related first mortgage loan, (iii) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally in the area wherein the property subject to the Mortgage is located or specifically reflected or considered in the lender's title insurance policy delivered to the originator of the Mortgage Loan and referred to in the appraisal made obtained in connection with the origination of the related Mortgage Loan, Loan obtained by the Unaffiliated Seller and (iiiiv) other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by such Mortgage and (iv) the first lien on the Mortgaged Property, in the case of the Mortgages that are second liens;
(8) Any security agreement, chattel mortgage or equivalent document related to such Mortgage Loan establishes and creates a valid and enforceable first or second lien on the Mortgaged Property;
(9) As of the last calendar day of March 2007, none of the Mortgage Loans are Delinquent.
(10) None of the Originator, the Obligor or any Seller Trust has advanced funds, or induced, solicited or knowingly received any advance of funds by a party other than the Mortgagor, directly or indirectly, for the payment of any amount required under the Mortgage Loan;
(11) None of the Originator, the Obligor or any Seller Trust has impaired, waived, altered or modified the related Mortgage or Mortgage Note in any material respect, or satisfied, canceled, rescinded or subordinated such Mortgage or Mortgage Note in whole or in part or released all or any material portion of the Mortgaged Property from the lien of the Mortgage, or executed any instrument of release, cancellation, rescission or satisfaction of the Mortgage Note or Mortgage;
(12d) Immediately prior to the transfer and assignment by the Unaffiliated Seller to the Trustee, the Unaffiliated Seller had good title to, and was the sole owner of each Mortgage Loan, free of any interest of any other Person, and the Unaffiliated Seller has transferred all right, title and interest in each Mortgage Loan to the Trustee;
(e) As of the Cut-off Off Date, the Mortgage has not been satisfied, canceled no payment of principal or subordinated, in whole interest on or in part, or rescinded, and the Mortgaged Property has not been released from the lien respect of the Mortgage, in whole or in part (except for a release that does not materially impair the security of the any Mortgage Loan remains unpaid for 30 or a release more days past the effect of which is reflected date the same was due in accordance with the Loan-to-Value Ratio or combined Loan-to-Value Ratio for the related Mortgage Loan as set forth in the Schedule of Mortgage Loans), nor has any instrument been executed that would effect any such release, cancellation, subordination or rescissionNote without regard to applicable grace periods;
(13f) No Mortgage Loan has a Loan Rate less than 6.99% per annum and the weighted average interest rate of the Mortgage Loans is 12.91%;
(g) At origination, no Mortgage Loan had an original term to maturity of greater than 360 months;
(h) As of the Cut-Off Date, the weighted average maturity of the Mortgage Loans is 183 months;
(i) To the best knowledge of the Unaffiliated Seller, there is no mechanics' lien or claim for work, labor or material (and no rights are outstanding that under law could give rise to such lien) affecting the premises subject to any Mortgage which is or may be a lien prior to, or equal or coordinate with, the lien of such Mortgage, except those which are insured against by the title insurance policy referred to in (af) below;
(j) To the best knowledge of the Unaffiliated Seller, there is no delinquent tax or assessment lien against any Mortgaged Property;
(k) Such Mortgage Loan, the Mortgage, and the Mortgage Note, including, without limitation, the obligation of the Mortgagor to pay the unpaid principal of and interest on the Mortgage Note, are each not subject to any right of rescissionrescission (or any such rescission right has expired in accordance with applicable law), set-off, counterclaim counterclaim, or defense, including the defense of usury, nor will the operation of any of the terms of any the Mortgage Note or the Mortgage, or the exercise of any right thereunder, render either the Mortgage Note or the Mortgage unenforceable unenforceable, in whole or in part, or subject to any right of rescission, set-off, counterclaim counterclaim, or defense, including the defense of usury, and no such right of rescission, set-off, counterclaim counterclaim, or defense has been asserted with respect thereto;.
(14l) To the Originator’s knowledgebest knowledge of the Unaffiliated Seller, the Mortgaged Property is free of material damage and is in good repair, and there is no pending or threatened proceeding pending for the total or partial condemnation and no eminent domain proceedings pending affecting any of the Mortgaged Property;
(15m) The Unaffiliated Seller has not received a notice of default of any first mortgage loan secured by the Mortgaged Property which has not been cured by a party other than the Unaffiliated Seller;
(n) Each Mortgage Note and Mortgage are in substantially the forms previously provided to the Trustee on behalf of the Unaffiliated Seller;
(o) No Mortgage Loan had, at the date of origination, a Combined Loan-to-Value Ratio in excess of 90.00%, and the weighted average Combined Loan- to-Value ratio of all Mortgage Loans is covered by either 67.63%;
(ip) The Mortgage Loan was not originated in a mortgage title insurance policy or other generally acceptable form program in which the amount of insurance policy customary documentation in the jurisdiction where underwriting process was limited in comparison to the Mortgaged Property is located together with an adjustable rate rider if applicable or originator's normal documentation requirements;
(iiq) if generally acceptable in No more than the jurisdiction where the Mortgaged Property is located, an attorney's opinion of title given by an attorney licensed to practice law in the jurisdiction where the Mortgaged Property is located. All of the Originator's rights under such policies, opinions or other instruments shall be transferred and assigned to Purchaser upon sale and assignment following percentages of the Mortgage Loans hereunderby Principal Balance as of the Cut-Off Date are secured by Mortgaged Properties located in the following states; State Percent of Principal Balance ----------------- ------------------ Delaware 3.68% Maryland 3.74 New Jersey 33.82 New York 7.71 Pennsylvania 47.23 Virginia 3.81 ------ 100.00% ------ ------
(r) The Mortgage Loans were not selected by the Unaffiliated Seller for inclusion in the Trust Fund on any basis adverse to the Trust Fund relative to the portfolio of similar mortgage loans of the Unaffiliated Seller;
(s) None of the Mortgage Loans constitutes a lien on leasehold interests;
(t) Each Mortgage contains customary and enforceable provisions which render the rights and remedies of the holder thereof adequate for the realization against the related Mortgaged Property of the benefits of the security including (A) in the case of a Mortgage designated as a deed of trust, by trustee's sale and (B) otherwise by judicial foreclosure. To the best of the Unaffiliated Seller's knowledge, there is no homestead or other exemption available to the related Mortgagor which would materially interfere with the right to sell the related Mortgaged Property at a trustee's sale or the right to foreclose the related Mortgage. The title insurance policy has been issued by a title insurer licensed to do business Mortgage contains customary and enforceable provisions for the acceleration of the payment of the Principal Balance of such Mortgage Loan in the jurisdiction where event all or any part of the related Mortgaged Property is locatedsold or otherwise transferred without the prior written consent of the holder thereof;
(u) The proceeds of such Mortgage Loan have been fully disbursed, insuring including reserves set aside by the original lenderUnaffiliated Seller, its successor there is no requirement for, and assignsthe Unaffiliated Seller shall not make any, future advances thereunder. Any future advances made prior to the Cut-Off Date have been consolidated with the principal balance secured by the Mortgage, and such principal balance, as to consolidated, bears a single interest rate and single repayment term reflected on the first or second priority lien applicable Mortgage Loan Schedule. The Principal Balance as of the Mortgage in Cut- Off Date does not exceed the original principal amount of such Mortgage Loan. Except with respect to approximately $45,000.00 of escrow funds, any and all requirements as to completion of any on-site or off-site improvements and as to disbursements of any escrow funds therefor have been complied with. All costs, fees, and expenses incurred in making, or recording such Mortgage Loan have been paid;
(v) All Mortgage Loans were originated in compliance with the Originators' Underwriting Guidelines;
(w) The terms of the Mortgage Loanand Mortgage Note have not been impaired, subject waived, altered, or modified in any respect, except by a written instrument which has been recorded, if necessary, to protect the interest of the Trustee and which has been delivered to the exceptions contained in such policyTrustee. The Originator substance of any such alteration or modification is or as to Subsequent Mortgage Loans will be reflected on the sole insured of such mortgagee applicable Mortgage Loan Schedule and, to the extent necessary, has been or will be approved by (i) the insurer under the applicable mortgage title insurance policy, and such mortgagee title (ii) the insurer under any other insurance policy required hereunder for such Mortgage Loan where such insurance policy requires approval and the failure to procure approval would impair coverage under such policy;
(x) No instrument of release, waiver, alteration, or modification has been executed in connection with such Mortgage Loan, and no Mortgagor has been released, in whole or in part, except in connection with an assumption agreement which has been approved by the insurer under any insurance policy required hereunder for such Mortgage Loan where such policy requires approval and the failure to procure approval would impair coverage under such policy, and which is in full force and effect and will be in force and effect upon the consummation part of the transactions contemplated by this Agreement. Neither Mortgage File and has been delivered to the Originator nor any affiliate of the Originator has madeTrustee, and the Originator has no knowledge of, any claims under such mortgagee title insurance policy. The Originator is not aware terms of any action by a prior holder and neither which are reflected in the Originator nor any affiliate of the Originator has done, by act or omission, anything which could impair the coverage or enforceability of such mortgagee title insurance policy or the accuracy of such attorney's opinion of titleapplicable Mortgage Loan Schedule;
(16y) There Other than delinquencies described in clause (e) above, there is no material default, breach, violation violation, or event of acceleration existing under the related Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute such a material default, breach, violation or event of acceleration, other than a payment delinquency that is for a payment due after and the date specified in (i) above. None of the Originator, the Obligor, any Unaffiliated Seller Trust or any affiliate of the Originator or any Seller Trust has not waived any such default, breach, violation or event of acceleration;
(17) With respect to any Mortgage Loan which provides for an adjustable interest rate, all rate adjustments have been performed in accordance with the terms of the related Mortgage Note or subsequent modifications, if any;
(18) To the Originator’s knowledge, there are no delinquent . All taxes, ground rents, water charges, sewer rents, assessments, insurance premiums, leasehold payments, governmental assessments (including assessments payable in future installments or other outstanding installments), insurance premiums, water, sewer, and municipal charges, leaseholder payments, or ground rents which previously became due and owing in respect of or affecting the related Mortgaged PropertyProperty have been paid. The Unaffiliated Seller has not advanced funds, or induced, solicited, or knowingly received any advance of funds by a party other than the Mortgagor, directly or indirectly, for the payment of any amount required by the Mortgage or the Mortgage Note;
(19z) As All of the Cut-off Date, no foreclosure proceedings are pending against the Mortgaged Property and the Mortgage Loan is not subject to any pending bankruptcy or insolvency proceeding, and to the Originator’s best knowledge, no material litigation or lawsuit relating to the Mortgage Loan is pending;
(20) The Mortgaged Property for each Mortgage Loan is insured under a hazard insurance policy (“Hazard Insurance”) in an amount at least equal to the lesser of (i) the maximum insurable value of such improvements or (ii) the principal balance of the Mortgage Loan with a standard mortgagee clause, in either case in an amount sufficient to avoid the application of any “co-insurance provisions,” and, if it was in place at origination of the Mortgage Loan, flood insurance, at the mortgagor's cost and expense. If the Mortgaged Property is in an area identified in the Federal Register by the Federal Emergency Management Agency (“FEMA”) as having special flood hazards, a flood insurance policy is in effect which met the requirements of FEMA at the time such policy was issued. The Mortgage obligates the Mortgagor to maintain the Hazard Insurance, and, if applicable, flood insurance policy at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at the Mortgagor's cost and expense, and to seek reimbursement therefor from the Mortgagor;
(21) The Mortgage Note is not and has not been secured by any collateral except the lien of the corresponding Mortgage and the security interest of any applicable security agreement or chattel mortgage;
(22) The Mortgage contains an enforceable provision were included for the acceleration purposes of determining 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. The Mortgage contains customary and enforceable provisions such as to render the rights and remedies of the holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security provided thereby, including (i) in the case of a Mortgage designated as a deed of trust, by trustee's sale and (ii) otherwise by judicial foreclosure. Since the date of origination of the Mortgage Loan, the Mortgaged Property has not been subject to any bankruptcy proceeding or foreclosure proceeding and the Mortgagor has not filed for protection under applicable bankruptcy laws. There is no homestead or other exemption available to the Mortgagor that would interfere with the right to sell the Mortgaged Property at a trustee's sale or the right to foreclose the Mortgage. In the event the Mortgage constitutes a deed of trust, a trustee, duly qualified under applicable law to serve as such, as been properly designated and currently so serves and is named in the Mortgage, and no fees or expenses are or will become payable by Purchaser to the trustee under the deed of trust, except in connection with a trustee's sale after default by the related Mortgagor. The Mortgagor has not notified the Originator or any affiliate of the Originator and the Originator has no knowledge of any relief requested or allowed to the Mortgagor under the Servicemembers Civil Relief Act;
(23) Except as set forth in the appraisal which forms part of the related Mortgage File, the Mortgaged Property, normal wear and tear excepted, is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty so as to affect materially and adversely the value Appraised Value of the Mortgaged Property as security for the Mortgage Loan or the use for which the premises were intended;
(24) To the Originator’s knowledge, there was no fraud involved in the origination of the Mortgage Loan by the mortgagee or by the Mortgagor, any appraiser or any other party involved in the origination of the Mortgage Loan;
(25) Each Mortgage File contains an appraisal of the Mortgaged Property indicating the appraised value completed at the time that such Mortgage Loan was originated and lie wholly within the boundaries and building restriction lines of origination for such Mortgaged Property. Each appraisal has been performed in accordance with the provisions of the Financial Institutions ReformExcept for DE MINIMIS encroachments, Recovery and Enforcement Act of 1989;
(26) To the best of the Originator’s knowledge, all parties which have had any interest in the Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the period in which they held and disposed of such interest, were) in compliance with any and all applicable “doing business” and licensing requirements of the laws of the state wherein the Mortgaged Property is located;
(27) No improvements on the related Mortgaged Property (upon which value was given) encroach on adjoining properties (and in the case of a condominium unit, such improvements are within the project with respect to that unit), and no improvements on adjoining properties encroach upon the Mortgaged Property. To the best of the Unaffiliated Seller's knowledge, no improvement located on or being part of the Mortgaged Property unless there exists is in violation of any applicable zoning law or regulation. All inspections, licenses, and certificates required to be made or issued with respect to all occupied portions of the Mortgage File a title Policy Mortgaged Property (including all such improvements which were included for the purpose of determining such Appraised Value) and, with endorsements which insure against losses sustained by respect to the insured as a result use and occupancy of such encroachmentsthe same, including but not limited to certificates of occupancy and fire underwriters certificates, have been made or obtained from the appropriate authorities and the Mortgaged Property is lawfully occupied under applicable law;
(28aa) Each To the best of the Unaffiliated Seller's knowledge, there do not exist any circumstances or conditions with respect to the Mortgage, the Mortgaged Property, the Mortgagor, or the Mortgagor's credit standing that can be reasonably expected to cause such Mortgage Loan was originated to become delinquent or acquired by a savings and loan association, a savings bank, a commercial bank adversely affect the value or similar banking institution which is supervised and examined by a federal or state authority, or by a mortgagee approved by the Secretary of HUD. Each Mortgage Loan was originated substantially in accordance with the Originator's underwriting criteria, which are at least as stringent as the underwriting criteria set forth in the Prospectus Supplement. Each Mortgage Loan is currently being serviced by the Originator and has been serviced by the Originator since the date of origination marketability of such Mortgage Loan, other than any such circumstances or conditions permitted under the Originator's Underwriting Guidelines;
Appears in 1 contract
Samples: Unaffiliated Seller's Agreement (Prudential Securities Secured Financing Corp)
