Representations and Warranties Relating to the Mortgage Loans. As to each Mortgage Loan (and the related Mortgage, Mortgage Notes or Loan Agreements, as applicable, Assignments and Mortgaged Property), Seller shall be deemed to make the following representations and warranties to Purchaser and Indenture Trustee as of the Closing Date. (a) The information set forth in the Mortgage Loan Schedule is complete, true and correct in all material respects; (b) None of the Mortgage Loans by Stated Principal Balance have no payment which is greater than 29 days past due and the remainder of the Mortgage Loans have no payment which is greater than 59 days past due. No Mortgage Loan has been dishonored. To the best of Seller’s knowledge, there are no material defaults under the terms of the Mortgage Loan, except as set forth in this paragraph; (c) To the best of Seller’s knowledge, there is no valid offset, right of rescission, defense or counterclaim of any obligor under any Mortgage Note, Loan Agreement or Mortgage, including the obligation of the Mortgagor to pay the unpaid principal of or interest on such Mortgage Note or Loan Agreement, and any applicable right of rescission has expired, nor will the operation of any of the terms of such Mortgage Note, Loan Agreement or Mortgage, or the exercise of any right thereunder, render either the Mortgage Note, Loan Agreement or the Mortgage unenforceable, in whole or in part, or subject to any right of rescission, set-off, recoupment, counterclaim or defense, including, without limitation, the defense of usury, and no such right of rescission, set-off, recoupment, counterclaim or defense has been asserted with respect thereto. To the best of Seller’s knowledge, no Mortgage Loan is subject to any pending bankruptcy, insolvency, reorganization or moratorium; (d) Other than amounts that constitute Permitted Liens, to the best of Seller’s knowledge, there are no mechanics’ liens or similar liens or claims for work, labor or material affecting any Mortgaged Property which have been filed (and no rights are outstanding that under law could give rise to such liens), which are or may be a lien prior to, or equal with, the lien of such Mortgage; (e) To the best of Seller’s knowledge, as of the Closing Date, there was and there currently is no material damage to any Mortgaged Property. To the best of Seller’s knowledge, there is no proceeding pending or threatened for the total or partial condemnation of any of the Mortgaged Properties. The Seller has not received notification that any such proceedings are scheduled to commence at a future date. (f) To the best of Seller’s knowledge, each Mortgage is a valid, subsisting, enforceable and perfected first, second or third lien on the Mortgaged Property securing the related Mortgage Note or Loan Agreement, including all buildings on the Mortgaged Property and all installations and mechanical, electrical, plumbing, heating and air conditioning systems affixed to such buildings, and all additions, alterations and replacements made at any time with respect to the foregoing securing the Mortgage Note or Loan Agreement’s original principal balance subject to principles of equity, bankruptcy, insolvency and other laws of general application affecting the rights of creditors. Each Mortgaged Property is owned by the Mortgagor in fee simple and is free and clear of all adverse claims, encumbrances and liens other than Permitted Liens having priority over the lien of the Mortgage. Any security agreement, chattel mortgage or equivalent document related to and delivered in connection with the Mortgage Loan establishes and creates a valid, subsisting enforceable, and perfected lien and security interest on the property described therein, and immediately prior to the sale of such Mortgage Loan to the Purchaser pursuant to this Agreement, the Seller had full right to sell and assign the same to the Purchaser; (g) Each Mortgage Loan complies with, and the Seller has complied with, applicable local, state and federal laws, regulations and other requirements including, without limitation, usury, equal credit opportunity, real estate settlement procedures, the Federal Truth-In-Lending Act and disclosure laws and consummation of the transactions contemplated hereby, including without limitation, the receipt of interest by the owner of such Mortgage Loan, will not involve the violation of any such laws, rules or regulations. None of the Group I Mortgage Loans and not more than 30% of the Group II Mortgage Loans are classified as a “high cost” loan under Section 32 of the Home Ownership and Equity Protection Act of 1994. Each Mortgage Loan is being (and with respect to the Mortgage Loans originated by the Seller or correspondent lenders has been) serviced in accordance with Accepted Servicing Practices and applicable state and federal laws, including, without limitation, the Federal Truth-In-Lending Act and other consumer protection laws, real estate settlement procedures, usury, equal credit opportunity and disclosure laws. (h) Neither the Seller nor, to the best of Seller’s knowledge, has any prior holder of any Mortgage Loan has in any material manner impaired, waived, altered or modified the Mortgage, Mortgage Note or Loan Agreement (except that a Mortgage Loan may have been modified by a written instrument (a copy of which is in the Mortgage File and the terms of which are reflected on the Mortgage Loan Schedule)) which has been recorded, if necessary to protect the interests of the owner of such Mortgage Loan; satisfied, canceled, rescinded or subordinated such Mortgage in whole or in part; released the applicable Mortgaged Property in whole or in part from the lien of such Mortgage; or executed any instrument of cancellation, rescission or satisfaction with respect thereto. No instrument of release or waiver has been executed in connection with any Mortgage Loan, and no Mortgagor has been released, in whole or in part from its obligations in connection with a Mortgage Loan; (i) For loans originated by the Seller or correspondent lenders, a property profile, title search, limited coverage policy or title insurance policy was obtained with respect to each Mortgage Loan, to the extent consistent with the normal credit and underwriting policies of Seller. (j) To the best of Seller’s knowledge, all of the improvements which were included for the purpose of determining the Appraised Value of the Mortgaged Property lie wholly within the boundaries and building restriction lines of such property (and wholly within the project with respect to a condominium unit), and no improvements on adjoining properties encroach upon the Mortgaged Property; (k) To the best of Seller’s knowledge, all parties that have had any interest in the Mortgage, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the period in which they held and disposed of such interest, were) (A) in compliance with or exempt from any and all applicable licensing requirements of the laws of the state wherein the Mortgaged Property is located, and (B) (1) organized under the laws of such state, or (2) qualified to do business in such state, or (3) federal savings and loan associations or national banks having principal offices in such state, or (4) not doing business in such state; (l) Each Mortgage Note or Loan Agreement and the applicable Mortgage are original and genuine, and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency, reorganization, moratorium, receivership and other similar laws relating to creditors’ rights generally or by equitable principles (regardless of whether such enforcement is considered in a proceeding in equity or at law) and the Seller has taken all action necessary to transfer such rights of enforceability to the Purchaser. To the best of Seller’s knowledge, all parties to the Mortgage Note or Loan Agreement and the Mortgage had legal capacity to execute the Mortgage Note or Loan Agreement and the Mortgage and each Mortgage Note or Loan Agreement and Mortgage has been duly and properly executed by such parties; (m) Other than with respect to the undrawn portion of the HELOCs as of the Cut-off Date, the proceeds of the Mortgage Loan have been fully disbursed; there is no requirement for future advances thereunder and any and all requirements as to completion of any on-site or off-site improvements. All costs, fees and expenses incurred in making, closing or recording the Mortgage Loan were paid and the Mortgagor is not entitled to any refund of amounts paid or due under the Mortgage Note or Loan Agreement or Mortgage; (n) To the best of Seller’s knowledge, each Mortgage contains customary and enforceable provisions that render the rights and remedies of the holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security, including (i) in the case of a Mortgage designated as a deed of trust, by trustee’s sale, and (ii) otherwise by judicial foreclosure or if applicable, non-judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and foreclosure on, or trustee’s sale of, the Mortgaged Property pursuant to the proper procedures, the holder of the Mortgage Loan will be able to deliver good and merchantable title to the property subject to any senior liens. To the best of Seller’s knowledge, there is no homestead or other exemption available to the Mortgagor which would interfere with such right to foreclose; (o) With respect to each Mortgage constituting a deed of trust, either a trustee, duly qualified under applicable law to serve as such, has been properly designated and currently so serves and is named in such Mortgage or if no duly qualified trustee has been properly designated and so serves, the Mortgage contains satisfactory provisions for the appointment of such trustee by the holder of the Mortgage at no cost or expense to such holder, and no fees or expenses are or will become payable by the Purchaser to the trustee under the deed of trust, except in connection with a trustee’s sale after default by the Mortgagor; (p) There are no defaults by Seller in complying with the terms of the Mortgage, and to the best of Seller’s knowledge, all other material taxes (except with respect to the Mortgage Loan with loan number 637739, which has a tax delinquency of less than $15.00), governmental assessments, water, sewer and municipal charges, leasehold payments or ground rents or other outstanding charges affecting the Mortgaged Property other than Permitted Liens which previously became due and owing have been paid; (q) The Mortgage Note or Loan Agreement is not and has not been secured by any collateral, pledged account or other security other than the lien of the corresponding Mortgage and to the best of Seller’s knowledge, no Mortgage Loan is secured by more than one Mortgaged Property; (r) There is no material default, breach or event of acceleration existing under the Mortgage or the applicable Mortgage Note or Loan Agreement; and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration, and none of (i) the Seller and any of its affiliates (ii) any servicer or subservicer and (iii) to the best of Seller’s knowledge, any prior mortgagee, of any Mortgage Loan has waived any material default, breach or event of acceleration; no foreclosure action is threatened or has been commenced with respect to the Mortgage Loan; (s) There is no obligation on the part of the Seller or any other party to make any payments with respect to the related Mortgage Loan in addition to the Monthly Payments required to be made by the applicable Mortgagor and except in the case of the undrawn portion of the HELOCs as of the Cut-off Date, the Mortgage Note or Loan Agreement with respect to any Mortgage Loan does not permit or obligate the Seller to make future advances to the Mortgagor at the option of the Mortgagor; (t) The Seller has not advanced funds for the payment of any interest or principal amounts due on any Mortgage Loan;
Appears in 1 contract
Samples: Mortgage Loan Sale Agreement (Bear Stearns Asset Backed Securities Inc)
Representations and Warranties Relating to the Mortgage Loans. As to each Mortgage Loan (and the related Mortgage, Mortgage Notes or Loan Agreements, as applicable, Assignments and Mortgaged Property, and including any Subsequent Mortgage Loans), Seller shall be deemed to make the following representations and warranties to Purchaser and Indenture Trustee as of the Closing Date or Subsequent Transfer Date, as applicable.
(a) The With respect to any Mortgage Loan, the information set forth in the Mortgage Loan Schedule for the Mortgage Loan is complete, true and correct in all material respects;
(b) The Mortgage Loans are not assigned or pledged, and Seller is the sole owner and holder of the Mortgage Loans free and clear of any and all Liens (other than Permitted Liens) and has full right and authority, under all governmental and regulatory bodies having jurisdiction over the ownership of the Mortgage Loans, to sell, assign and transfer the same;
(c) None of the Mortgage Loans by Stated Principal Balance have no payment which Documents is greater than 29 days past due assigned or pledged, and Seller is the remainder sole owner and holder of the Mortgage Loans have no payment which is greater free and clear of any and all Liens (other than 59 days past due. No Mortgage Loan Permitted Liens), and has been dishonored. To full right and authority, under all governmental and regulatory bodies having jurisdiction over the best of Seller’s knowledge, there are no material defaults under the terms ownership of the Mortgage LoanLoans, except as set forth in this paragraphto sell, assign and transfer the same;
(cd) To the best of Seller’s 's knowledge, the related Mortgages create a valid and subsisting first or more junior lien with respect to each Mortgaged Property; and as of the Cut-Off Date, such Mortgaged Property is free and clear of all encumbrances and Liens having priority over the first or more junior lien, as applicable, of such Mortgage, except for Permitted Liens;
(e) To the best of Seller's knowledge, there is no valid offset, right of rescission, defense or counterclaim of any obligor Mortgagor under any Mortgage Note, Loan Agreement or Mortgage, including the obligation of the Mortgagor to pay the unpaid principal of or interest on such Mortgage Note or Loan Agreement, and any applicable right of rescission has expired, nor will the operation of any of the terms of such Mortgage Note, Loan Agreement or Mortgage, or the exercise of any right thereunder, render either the Mortgage Note, Loan Agreement or the Mortgage unenforceable, in whole or in part, or subject to any right of rescission, set-off, recoupment, counterclaim or defense, including, without limitation, the defense of usury, and no such right of rescission, set-off, recoupment, counterclaim or defense has been asserted with respect thereto. To the best of Seller’s knowledge, no Mortgage Loan is subject to any pending bankruptcy, insolvency, reorganization or moratoriumDocument;
(df) Other than amounts that constitute Permitted Liens, to the best of Seller’s 's knowledge, there are is no mechanics’ liens delinquent recording or similar liens other tax, fee or claims for work, labor or material affecting assessment lien against any of the Mortgaged Property which have been filed (and no rights are outstanding that under law could give rise to such liens), which are or may be a lien prior to, or equal with, the lien of such MortgageProperties;
(eg) To the best of Seller’s knowledge, as of the Closing Date, there was and there currently is no material damage to any Mortgaged Property. To the best of Seller’s 's knowledge, there is no proceeding pending or threatened for the total or partial condemnation of any of the Mortgaged Properties. The Seller has not received notification that any , and such proceedings Mortgaged Properties are scheduled to commence at a future date.free of material damage;
(fh) To Other than amounts that constitute Permitted Liens, to the best of Seller’s 's knowledge, each Mortgage is a validno mechanics' or similar liens have been filed for work, subsisting, enforceable and perfected first, second labor or third lien on materials affecting any of the Mortgaged Property securing Properties that are or may become liens prior or equal to the liens of the related Mortgage Note or Loan Agreement, including all buildings on the Mortgaged Property and all installations and mechanical, electrical, plumbing, heating and air conditioning systems affixed to such buildings, and all additions, alterations and replacements made at any time with respect to the foregoing securing the Mortgage Note or Loan Agreement’s original principal balance subject to principles of equity, bankruptcy, insolvency and other laws of general application affecting the rights of creditors. Each Mortgaged Property is owned by the Mortgagor in fee simple and is free and clear of all adverse claims, encumbrances and liens other than Permitted Liens having priority over the lien of the Mortgage. Any security agreement, chattel mortgage or equivalent document related to and delivered in connection with the Mortgage Loan establishes and creates a valid, subsisting enforceable, and perfected lien and security interest on the property described therein, and immediately prior to the sale of such Mortgage Loan to the Purchaser pursuant to this Agreement, the Seller had full right to sell and assign the same to the PurchaserMortgages;
(gi) Each No monthly payment of principal or interest is more than 59 days delinquent (measured on a contractual basis);
(j) The Mortgage Loan complies with, Files contain each of the documents and the Seller has instruments specified to be included therein;
(k) The Mortgage Documents at origination complied with, in all material respects with applicable local, state and federal laws, regulations and other requirements including, without limitation, including usury, equal credit opportunitytruth-in-lending, real estate settlement procedures, the Federal Truth-In-Lending Act and disclosure laws and consummation of the transactions contemplated hereby, including without limitation, the receipt of interest by the owner of such Mortgage Loan, will not involve the violation of any such laws, rules or regulations. None of the Group I Mortgage Loans and not more than 30% of the Group II Mortgage Loans are classified as a “high cost” loan under Section 32 of the Home Ownership and Equity Protection Act of 1994. Each Mortgage Loan is being (and with respect to the Mortgage Loans originated by the Seller or correspondent lenders has been) serviced in accordance with Accepted Servicing Practices and applicable state and federal laws, including, without limitation, the Federal Truth-In-Lending Act and other consumer protection laws, real estate settlement procedures, usurycredit protection, equal credit opportunity and disclosure laws.
(h) Neither the Seller nor, laws applicable to the best of Seller’s knowledge, has any prior holder of any Mortgage Loan has in any material manner impaired, waived, altered or modified the Mortgage, Mortgage Note or Loan Agreement (except that a Mortgage Loan may have been modified by a written instrument (a copy of which is in the Mortgage File and the terms of which are reflected on the Mortgage Loan Schedule)) which has been recorded, if necessary to protect the interests of the owner of such Mortgage Loan; satisfied, canceled, rescinded or subordinated such Mortgage in whole or in part; released the applicable Mortgaged Property in whole or in part from the lien of such Mortgage; or executed any instrument of cancellation, rescission or satisfaction with respect thereto. No instrument of release or waiver has been executed in connection with any Mortgage Loan, and no Mortgagor has been released, in whole or in part from its obligations in connection with a Mortgage LoanLoans;
(il) For loans originated by On the Closing Date, with respect to the Mortgage Loans, Seller or correspondent lenders, a has filed UCC-1 financing statements naming Transferor as debtor/seller and Depositor as secured party/purchaser with respect to the Mortgage Loans;
(m) A property profile, title search, limited coverage policy or title insurance policy was obtained with respect to each Mortgage Loan, to the extent consistent with the normal credit and underwriting policies of Seller.
(j) To the best of Seller’s knowledge, all of the improvements which were included for the purpose of determining the Appraised Value of the Mortgaged Property lie wholly within the boundaries and building restriction lines of such property (and wholly within the project with respect to a condominium unit), and no improvements on adjoining properties encroach upon the Mortgaged Property;
(k) To the best of Seller’s knowledge, all parties that have had any interest in the Mortgage, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the period in which they held and disposed of such interest, were)
(A) in compliance with or exempt from any and all applicable licensing requirements of the laws of the state wherein the Mortgaged Property is located, and (B) (1) organized under the laws of such state, or (2) qualified to do business in such state, or (3) federal savings and loan associations or national banks having principal offices in such state, or (4) not doing business in such state;
(l) Each Mortgage Note or Loan Agreement and the applicable Mortgage are original and genuine, and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency, reorganization, moratorium, receivership and other similar laws relating to creditors’ rights generally or by equitable principles (regardless of whether such enforcement is considered in a proceeding in equity or at law) and the Seller has taken all action necessary to transfer such rights of enforceability to the Purchaser. To the best of Seller’s knowledge, all parties to the Mortgage Note or Loan Agreement and the Mortgage had legal capacity to execute the Mortgage Note or Loan Agreement and the Mortgage and each Mortgage Note or Loan Agreement and Mortgage has been duly and properly executed by such parties;
(m) Other than with respect to the undrawn portion of the HELOCs as of the Cut-off Date, the proceeds of the Mortgage Loan have been fully disbursed; there is no requirement for future advances thereunder and any and all requirements as to completion of any on-site or off-site improvements. All costs, fees and expenses incurred in making, closing or recording the Mortgage Loan were paid and the Mortgagor is not entitled to any refund of amounts paid or due under the Mortgage Note or Loan Agreement or Mortgage;
(n) To the best of Seller’s knowledge, each Mortgage contains customary and enforceable provisions that render the rights and remedies of the holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security, including (i) in the case of a Mortgage designated as a deed of trust, by trustee’s sale, and (ii) otherwise by judicial foreclosure or if applicable, non-judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and foreclosure on, or trustee’s sale of, the Mortgaged Property pursuant to the proper procedures, the holder of the Mortgage Loan will be able to deliver good and merchantable title to the property subject to any senior liens. To the best of Seller’s knowledge, there is no homestead or other exemption available to the Mortgagor which would interfere with such right to foreclose;
(o) With respect to each Mortgage constituting a deed of trust, either a trustee, duly qualified under applicable law to serve as such, has been properly designated and currently so serves and is named in such Mortgage or if no duly qualified trustee has been properly designated and so serves, the Mortgage contains satisfactory provisions for the appointment of such trustee by the holder of the Mortgage at no cost or expense to such holder, and no fees or expenses are or will become payable by the Purchaser to the trustee under the deed of trust, except in connection with a trustee’s sale after default by the Mortgagor;
(p) There are no defaults by Seller in complying with the terms of the Mortgage, and to the best of Seller’s knowledge, all other material taxes (except with respect to the Mortgage Loan with loan number 637739, which has a tax delinquency of less than $15.00), governmental assessments, water, sewer and municipal charges, leasehold payments or ground rents or other outstanding charges affecting the Mortgaged Property other than Permitted Liens which previously became due and owing have been paid;
(q) The Mortgage Note or Loan Agreement is not and has not been secured by any collateral, pledged account or other security other than the lien of the corresponding Mortgage and to the best of Seller’s knowledge, no Mortgage Loan is secured by more than one Mortgaged Property;
(r) There is no material default, breach or event of acceleration existing under the Mortgage or the applicable Mortgage Note or Loan Agreement; and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration, and none of (i) the Seller and any of its affiliates (ii) any servicer or subservicer and (iii) to the best of Seller’s knowledge, any prior mortgagee, of any Mortgage Loan has waived any material default, breach or event of acceleration; no foreclosure action is threatened or has been commenced with respect to the Mortgage Loan;
(s) There is no obligation on the part of the Seller or any other party to make any payments with respect to the related Mortgage Loan in addition to the Monthly Payments required to be made by the applicable Mortgagor and except in the case of the undrawn portion of the HELOCs as of the Cut-off Date, the Mortgage Note or Loan Agreement with respect to any Mortgage Loan does not permit or obligate the Seller to make future advances to the Mortgagor at the option of the Mortgagor;
(t) The Seller has not advanced funds for the payment of any interest or principal amounts due on any Mortgage Loan;
Appears in 1 contract
Samples: Mortgage Loan Sale Agreement (Bear Stearns Asset Backed Sec Inc Irwin Home Eq Lo Tr 2001-2)
Representations and Warranties Relating to the Mortgage Loans. As to each Mortgage Loan (and the related Mortgage, Mortgage Notes or Loan Agreements, as applicable, Assignments and Mortgaged Property, and including any Subsequent Mortgage Loans), Seller Transferor shall be deemed to make the following representations and warranties to Purchaser Depositor and Indenture Trustee as of the Closing Date.
(a) The With respect to any Mortgage Loan, the information set forth in the Mortgage Loan Schedule for the Mortgage Loan is complete, true and correct in all material respects;
(b) None The Mortgage Loans are not assigned or pledged, and Transferor is the sole owner and holder of the Mortgage Loans by Stated Principal Balance have no payment which is greater free and clear of any and all Liens (other than 29 days past due Permitted Liens) and has full right and authority, under all governmental and regulatory bodies having jurisdiction over the remainder ownership of the Mortgage Loans have no payment which is greater than 59 days past due. No Mortgage Loan has been dishonored. To Loans, to sell, assign and transfer the best of Seller’s knowledge, there are no material defaults under the terms of the Mortgage Loan, except as set forth in this paragraphsame;
(c) None of the Mortgage Documents is assigned or pledged, and Transferor is the sole owner and holder of the Mortgage Loans free and clear of any and all Liens (other than Permitted Liens), and has full right and authority, under all governmental and regulatory bodies having jurisdiction over the ownership of the Mortgage Loans, to sell, assign and transfer the same;
(d) To the best of Seller’s Transferor's knowledge, the related Mortgages create a valid and subsisting first or more junior lien with respect to each Mortgaged Property; and as of the Cut-Off Date, such Mortgaged Property is free and clear of all encumbrances and Liens having priority over the first or more junior lien, as applicable, of such Mortgage, except for Permitted Liens;
(e) To the best of Transferor's knowledge, there is no valid offset, right of rescission, defense or counterclaim of any obligor Mortgagor under any Mortgage Note, Loan Agreement or Mortgage, including the obligation of the Mortgagor to pay the unpaid principal of or interest on such Mortgage Note or Loan Agreement, and any applicable right of rescission has expired, nor will the operation of any of the terms of such Mortgage Note, Loan Agreement or Mortgage, or the exercise of any right thereunder, render either the Mortgage Note, Loan Agreement or the Mortgage unenforceable, in whole or in part, or subject to any right of rescission, set-off, recoupment, counterclaim or defense, including, without limitation, the defense of usury, and no such right of rescission, set-off, recoupment, counterclaim or defense has been asserted with respect thereto. To the best of Seller’s knowledge, no Mortgage Loan is subject to any pending bankruptcy, insolvency, reorganization or moratoriumDocument;
(df) Other than amounts that constitute Permitted Liens, to the best of Seller’s Transferor's knowledge, there are is no mechanics’ liens delinquent recording or similar liens other tax, fee or claims for work, labor or material affecting assessment lien against any of the Mortgaged Property which have been filed (and no rights are outstanding that under law could give rise to such liens), which are or may be a lien prior to, or equal with, the lien of such MortgageProperties;
(eg) To the best of Seller’s knowledge, as of the Closing Date, there was and there currently is no material damage to any Mortgaged Property. To the best of Seller’s Transferor's knowledge, there is no proceeding pending or threatened for the total or partial condemnation of any of the Mortgaged Properties. The Seller has not received notification that any , and such proceedings Mortgaged Properties are scheduled to commence at a future date.free of material damage;
(fh) To Other than amounts that constitute Permitted Liens, to the best of Seller’s Transferor's knowledge, each Mortgage is a validno mechanics' or similar liens have been filed for work, subsisting, enforceable and perfected first, second labor or third lien on materials affecting any of the Mortgaged Property securing Properties that are or may become liens prior or equal to the liens of the related Mortgage Note or Loan Agreement, including all buildings on the Mortgaged Property and all installations and mechanical, electrical, plumbing, heating and air conditioning systems affixed to such buildings, and all additions, alterations and replacements made at any time with respect to the foregoing securing the Mortgage Note or Loan Agreement’s original principal balance subject to principles of equity, bankruptcy, insolvency and other laws of general application affecting the rights of creditors. Each Mortgaged Property is owned by the Mortgagor in fee simple and is free and clear of all adverse claims, encumbrances and liens other than Permitted Liens having priority over the lien of the Mortgage. Any security agreement, chattel mortgage or equivalent document related to and delivered in connection with the Mortgage Loan establishes and creates a valid, subsisting enforceable, and perfected lien and security interest on the property described therein, and immediately prior to the sale of such Mortgage Loan to the Purchaser pursuant to this Agreement, the Seller had full right to sell and assign the same to the PurchaserMortgages;
(gi) Each No monthly payment of principal or interest is more than 59 days delinquent (measured on a contractual basis);
(j) The Mortgage Loan complies with, Files contain each of the documents and the Seller has instruments specified to be included therein;
(k) The Mortgage Documents at origination complied with, in all material respects with applicable local, state and federal laws, regulations and other requirements including, without limitation, including usury, equal credit opportunitytruth-in-lending, real estate settlement procedures, the Federal Truth-In-Lending Act and disclosure laws and consummation of the transactions contemplated hereby, including without limitation, the receipt of interest by the owner of such Mortgage Loan, will not involve the violation of any such laws, rules or regulations. None of the Group I Mortgage Loans and not more than 30% of the Group II Mortgage Loans are classified as a “high cost” loan under Section 32 of the Home Ownership and Equity Protection Act of 1994. Each Mortgage Loan is being (and with respect to the Mortgage Loans originated by the Seller or correspondent lenders has been) serviced in accordance with Accepted Servicing Practices and applicable state and federal laws, including, without limitation, the Federal Truth-In-Lending Act and other consumer protection laws, real estate settlement procedures, usurycredit protection, equal credit opportunity and disclosure laws.
(h) Neither the Seller nor, laws applicable to the best of Seller’s knowledge, has any prior holder of any Mortgage Loan has in any material manner impaired, waived, altered or modified the Mortgage, Mortgage Note or Loan Agreement (except that a Mortgage Loan may have been modified by a written instrument (a copy of which is in the Mortgage File and the terms of which are reflected on the Mortgage Loan Schedule)) which has been recorded, if necessary to protect the interests of the owner of such Mortgage Loan; satisfied, canceled, rescinded or subordinated such Mortgage in whole or in part; released the applicable Mortgaged Property in whole or in part from the lien of such Mortgage; or executed any instrument of cancellation, rescission or satisfaction with respect thereto. No instrument of release or waiver has been executed in connection with any Mortgage Loan, and no Mortgagor has been released, in whole or in part from its obligations in connection with a Mortgage LoanLoans;
(il) For loans originated by On the Seller or correspondent lendersClosing Date, a with respect to the Mortgage Loans, Transferor has filed UCC-1 financing statements naming Transferor as debtor/seller and Depositor as secured party/purchaser with respect to the Mortgage Loans;
(m) A property profile, title search, limited coverage policy or title insurance policy was obtained with respect to each Mortgage Loan, to the extent consistent with the normal credit and underwriting policies of Seller.
(j) To the best of Seller’s knowledge, all of the improvements which were included for the purpose of determining the Appraised Value of the Mortgaged Property lie wholly within the boundaries and building restriction lines of such property (and wholly within the project with respect to a condominium unit), and no improvements on adjoining properties encroach upon the Mortgaged Property;
(k) To the best of Seller’s knowledge, all parties that have had any interest in the Mortgage, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the period in which they held and disposed of such interest, were)
(A) in compliance with or exempt from any and all applicable licensing requirements of the laws of the state wherein the Mortgaged Property is located, and (B) (1) organized under the laws of such state, or (2) qualified to do business in such state, or (3) federal savings and loan associations or national banks having principal offices in such state, or (4) not doing business in such state;
(l) Each Mortgage Note or Loan Agreement and the applicable Mortgage are original and genuine, and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency, reorganization, moratorium, receivership and other similar laws relating to creditors’ rights generally or by equitable principles (regardless of whether such enforcement is considered in a proceeding in equity or at law) and the Seller has taken all action necessary to transfer such rights of enforceability to the Purchaser. To the best of Seller’s knowledge, all parties to the Mortgage Note or Loan Agreement and the Mortgage had legal capacity to execute the Mortgage Note or Loan Agreement and the Mortgage and each Mortgage Note or Loan Agreement and Mortgage has been duly and properly executed by such parties;
(m) Other than with respect to the undrawn portion of the HELOCs as of the Cut-off Date, the proceeds of the Mortgage Loan have been fully disbursed; there is no requirement for future advances thereunder and any and all requirements as to completion of any on-site or off-site improvements. All costs, fees and expenses incurred in making, closing or recording the Mortgage Loan were paid and the Mortgagor is not entitled to any refund of amounts paid or due under the Mortgage Note or Loan Agreement or Mortgage;
(n) To the best of Seller’s knowledge, each Mortgage contains customary and enforceable provisions that render the rights and remedies of the holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security, including (i) in the case of a Mortgage designated as a deed of trust, by trustee’s sale, and (ii) otherwise by judicial foreclosure or if applicable, non-judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and foreclosure on, or trustee’s sale of, the Mortgaged Property pursuant to the proper procedures, the holder of the Mortgage Loan will be able to deliver good and merchantable title to the property subject to any senior liens. To the best of Seller’s knowledge, there is no homestead or other exemption available to the Mortgagor which would interfere with such right to foreclose;
(o) With respect to each Mortgage constituting a deed of trust, either a trustee, duly qualified under applicable law to serve as such, has been properly designated and currently so serves and is named in such Mortgage or if no duly qualified trustee has been properly designated and so serves, the Mortgage contains satisfactory provisions for the appointment of such trustee by the holder of the Mortgage at no cost or expense to such holder, and no fees or expenses are or will become payable by the Purchaser to the trustee under the deed of trust, except in connection with a trustee’s sale after default by the Mortgagor;
(p) There are no defaults by Seller in complying with the terms of the Mortgage, and to the best of Seller’s knowledge, all other material taxes (except with respect to the Mortgage Loan with loan number 637739, which has a tax delinquency of less than $15.00), governmental assessments, water, sewer and municipal charges, leasehold payments or ground rents or other outstanding charges affecting the Mortgaged Property other than Permitted Liens which previously became due and owing have been paid;
(q) The Mortgage Note or Loan Agreement is not and has not been secured by any collateral, pledged account or other security other than the lien of the corresponding Mortgage and to the best of Seller’s knowledge, no Mortgage Loan is secured by more than one Mortgaged Property;
(r) There is no material default, breach or event of acceleration existing under the Mortgage or the applicable Mortgage Note or Loan Agreement; and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration, and none of (i) the Seller and any of its affiliates (ii) any servicer or subservicer and (iii) to the best of Seller’s knowledge, any prior mortgagee, of any Mortgage Loan has waived any material default, breach or event of acceleration; no foreclosure action is threatened or has been commenced with respect to the Mortgage Loan;
(s) There is no obligation on the part of the Seller or any other party to make any payments with respect to the related Mortgage Loan in addition to the Monthly Payments required to be made by the applicable Mortgagor and except in the case of the undrawn portion of the HELOCs as of the Cut-off Date, the Mortgage Note or Loan Agreement with respect to any Mortgage Loan does not permit or obligate the Seller to make future advances to the Mortgagor at the option of the Mortgagor;
(t) The Seller has not advanced funds for the payment of any interest or principal amounts due on any Mortgage Loan;
Appears in 1 contract
Samples: Purchase and Sale Agreement (Bear Stearns Asset Backed Sec Inc Irwin Home Eq Lo Tr 2001-2)
Representations and Warranties Relating to the Mortgage Loans. As to each Mortgage Loan (and the related Mortgage, Mortgage Notes or Loan Agreements, as applicable, Assignments and Mortgaged Property), Seller shall be deemed to make the following representations and warranties to Purchaser and Indenture Trustee as of the Closing DateDate (except as otherwise specified below).
(a) The With respect to any Mortgage Loan, the information set forth in the Mortgage Loan Schedule for the Mortgage Loan is complete, true and correct in all material respects;
(b) None The Mortgage Loans are not assigned or pledged, and Seller is the sole owner and holder of the Mortgage Loans by Stated Principal Balance have no payment which is greater free and clear of any and all Liens (other than 29 days past due Permitted Liens) and has full right and authority, under all governmental and regulatory bodies having jurisdiction over the remainder ownership of the Mortgage Loans have no payment which is greater than 59 days past due. No Mortgage Loan has been dishonored. To Loans, to sell, assign and transfer the best of Seller’s knowledge, there are no material defaults under the terms of the Mortgage Loan, except as set forth in this paragraphsame;
(c) To the best of Seller’s 's knowledge, the related Mortgages create a valid and subsisting first, second or more junior lien, as set forth on the data tapes provided by the Master Servicer with respect to each Mortgaged Property; and as of the Cut-Off Date, such Mortgaged Property is free and clear of all encumbrances and Liens having priority over the first, second or more junior lien, as applicable, of such Mortgage, except for Permitted Liens;
(d) To the best of Seller's knowledge, there is no valid offset, right of rescission, defense or counterclaim of any obligor Mortgagor under any Mortgage Note, Loan Agreement or Mortgage, including the obligation of the Mortgagor to pay the unpaid principal of or interest on such Mortgage Note or Loan Agreement, and any applicable right of rescission has expired, nor will the operation of any of the terms of such Mortgage Note, Loan Agreement or Mortgage, or the exercise of any right thereunder, render either the Mortgage Note, Loan Agreement or the Mortgage unenforceable, in whole or in part, or subject to any right of rescission, set-off, recoupment, counterclaim or defense, including, without limitation, the defense of usury, and no such right of rescission, set-off, recoupment, counterclaim or defense has been asserted with respect thereto. To the best of Seller’s knowledge, no Mortgage Loan is subject to any pending bankruptcy, insolvency, reorganization or moratoriumDocument;
(de) Other than amounts that constitute Permitted Liens, to the best of Seller’s 's knowledge, there are is no mechanics’ liens delinquent recording or similar liens other tax, fee or claims for work, labor or material affecting assessment lien against any of the Mortgaged Property which have been filed (and no rights are outstanding that under law could give rise to such liens), which are or may be a lien prior to, or equal with, the lien of such MortgageProperties;
(ef) To the best of Seller’s knowledge, as of the Closing Date, there was and there currently is no material damage to any Mortgaged Property. To the best of Seller’s 's knowledge, there is no proceeding pending or threatened for the total or partial condemnation of any of the Mortgaged Properties. The Seller has not received notification that any such proceedings are scheduled to commence at a future date.
(f) To the best of Seller’s knowledge, each Mortgage is a valid, subsisting, enforceable and perfected first, second or third lien on the Mortgaged Property securing the related Mortgage Note or Loan Agreement, including all buildings on the Mortgaged Property and all installations and mechanical, electrical, plumbing, heating and air conditioning systems affixed to such buildings, and all additions, alterations and replacements made at any time with respect to the foregoing securing the Mortgage Note or Loan Agreement’s original principal balance subject to principles such Mortgaged Properties are free of equity, bankruptcy, insolvency and other laws of general application affecting the rights of creditors. Each Mortgaged Property is owned by the Mortgagor in fee simple and is free and clear of all adverse claims, encumbrances and liens other than Permitted Liens having priority over the lien of the Mortgage. Any security agreement, chattel mortgage or equivalent document related to and delivered in connection with the Mortgage Loan establishes and creates a valid, subsisting enforceable, and perfected lien and security interest on the property described therein, and immediately prior to the sale of such Mortgage Loan to the Purchaser pursuant to this Agreement, the Seller had full right to sell and assign the same to the Purchasermaterial damage;
(g) Each Other than amounts that constitute Permitted Liens, to the best of Seller's knowledge, no mechanics' or similar liens have been filed for work, labor or materials affecting any of the Mortgaged Properties that are or may become liens prior or equal to the liens of the related Mortgages;
(h) No monthly payment of principal or interest is more than 59 days delinquent (measured on a contractual basis);
(i) The Mortgage Loan complies with, Files contain each of the documents and the Seller has instruments specified to be included therein;
(j) The Mortgage Documents at origination complied with, in all material respects with applicable local, state and federal laws, regulations and other requirements including, including without limitation, applicable predatory and abusive lending laws, usury, equal credit opportunitytruth-in-lending, real estate settlement procedures, the Federal Truth-In-Lending Act consumer credit protection, equal credit opportunity and disclosure laws and consummation of applicable to the transactions contemplated hereby, including without limitation, the receipt of interest by the owner of such Mortgage Loan, will not involve the violation of any such laws, rules or regulations. None of the Group I Mortgage Loans and not more than 30% of the Group II Mortgage Loans are classified as a “high cost” loan under Section 32 of the Home Ownership and Equity Protection Act of 1994. Loans;
(k) Each Mortgage Loan is being (and with respect to the Mortgage Loans originated by the Seller or correspondent lenders has been) been serviced in accordance with Accepted Servicing Practices (i) mortgage servicing practices of prudent mortgage lending institutions which service mortgage loans of the same type as the Mortgage Loan for their own account in the jurisdiction in which the related Mortgaged Property is located and (ii) applicable state and federal laws, including, without limitation, the Federal Truth-Inin-Lending Act and other consumer protection laws, real estate settlement procedures, usury, equal credit opportunity and disclosure laws.
(h) Neither the Seller nor, to the best of Seller’s knowledge, has any prior holder of any Mortgage Loan has in any material manner impaired, waived, altered or modified the Mortgage, Mortgage Note or Loan Agreement (except that a Mortgage Loan may have been modified by a written instrument (a copy of which is in the Mortgage File and the terms of which are reflected on the Mortgage Loan Schedule)) which has been recorded, if necessary to protect the interests of the owner of such Mortgage Loan; satisfied, canceled, rescinded or subordinated such Mortgage in whole or in part; released the applicable Mortgaged Property in whole or in part from the lien of such Mortgage; or executed any instrument of cancellation, rescission or satisfaction with respect thereto. No instrument of release or waiver has been executed in connection with any Mortgage Loan, and no Mortgagor has been released, in whole or in part from its obligations in connection with a Mortgage Loan;
(l) No Mortgage Loan secured by property located in the State of Georgia (i) For loans was originated on or after October 1, 2002 or (ii) is a "high cost" loan as defined by applicable Georgia law;
(m) No Mortgage Loan secured by property located in City of New York, State of New York (i) was originated on or after February 18, 2003 and (ii) is classified and/or defined as a "high-cost home loan" under the administrative code, or other applicable law, regulation or ordinance, of the City of New York;
(n) On the Closing Date, with respect to the Mortgage Loans, Seller has filed UCC-1 financing statements naming the Seller or correspondent lenders, a as debtor/seller and Depositor as secured party/purchaser with respect to the Mortgage Loans;
(o) A property profile, title search, limited coverage policy or title insurance policy was obtained with respect to each Mortgage Loan, to the extent consistent with the normal credit and underwriting policies of SellerSeller and Master Servicer;
(p) As of the Statistical Calculation Date, no more than 0.87% of the Mortgage Loans (by Principal Balance) are secured by Mortgaged Properties in any single ZIP code.
(jq) To the best of Seller’s knowledge, all As of the improvements which were included Closing Date, no more than 45% (by aggregate Principal Balance) of the Mortgage Loans constitute "real estate mortgages" for the purpose of determining Treasury Regulationss.301.7701(i) - 1(d) under the Appraised Value Code. For this purpose a Mortgage Loan constitutes a "real estate mortgage" if it satisfies either test set out in paragraph (i) or paragraph (ii) below:
(i) The fair market value of the interest in real property securing the obligation was at least equal to 80 percent of the adjusted issue price of the obligation at the time the obligation was originated (or, if later, the time the obligation was significantly modified). For purposes of this paragraph (a), the fair market value of the real property interest must be first reduced by the amount of any lien on the real property interest that is senior to the obligation being tested, and must be further reduced by a proportionate amount of any lien that is in parity with the obligation being tested. The adjusted issue price of an obligation is its issue price plus the amount of accrued original issue discount, if any, as of the date of determination;
(ii) Substantially all of the proceeds of the obligation were used for one or more of the following purposes: (i) to acquire an interest in real property; (ii) to improve an interest in real property; or (iii) to protect an interest in real property, that, at the origination date, is the only security for the obligation. For this purpose only, substantially all of the proceeds of the obligations means two-thirds or more of the gross proceeds. For purposes of this paragraph (b), the use of the proceeds of the related Mortgage Loan to retire an existing lien against the related Mortgaged Property lie wholly within is considered use of the boundaries proceeds to protect an interest in real property;
(r) No selection procedure reasonably believed by Seller to be adverse to the interests of Depositor, the Indenture Trustee or the Noteholders was utilized in selecting the Mortgage Loans;
(s) Seller has not transferred the Mortgage Loans with any intent to hinder, delay or defraud any of its creditors;
(t) The monthly principal and building restriction lines of such property (and wholly within the project interest payment with respect to a condominium unit), each Mortgage Loan is sufficient to pay accrued interest on and no improvements on adjoining properties encroach upon amortize the Mortgaged Propertyoutstanding Principal Balance of such Mortgage Loan;
(k) To the best of Seller’s knowledge, all parties that have had any interest in the Mortgage, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the period in which they held and disposed of such interest, were)
(A) in compliance with or exempt from any and all applicable licensing requirements of the laws of the state wherein the Mortgaged Property is located, and (B) (1) organized under the laws of such state, or (2) qualified to do business in such state, or (3) federal savings and loan associations or national banks having principal offices in such state, or (4) not doing business in such state;
(lu) Each Mortgage Note or Loan Agreement and the applicable related Mortgage are original and genuine, and each Documents is the a legal, valid and binding obligation of the maker thereofrelated Mortgagor, enforceable in accordance with its termsagainst the related Mortgagor, except as the enforceability thereof may be limited by the effect of bankruptcy, insolvency, reorganization, moratorium, receivership and other insolvency or similar laws relating to affecting creditors’ ' rights generally or by equitable principles (regardless of whether such enforcement is considered in a proceeding in equity or at law) and the Seller has taken all action necessary to transfer such rights of enforceability to the Purchaser. To the best of Seller’s knowledge, all parties to the Mortgage Note or Loan Agreement and the Mortgage had legal capacity to execute the Mortgage Note or Loan Agreement and the Mortgage and each Mortgage Note or Loan Agreement and Mortgage has been duly and properly executed by such partiesgenerally;
(m) Other than with respect to the undrawn portion of the HELOCs as of the Cut-off Date, the proceeds of the Mortgage Loan have been fully disbursed; there is no requirement for future advances thereunder and any and all requirements as to completion of any on-site or off-site improvements. All costs, fees and expenses incurred in making, closing or recording the Mortgage Loan were paid and the Mortgagor is not entitled to any refund of amounts paid or due under the Mortgage Note or Loan Agreement or Mortgage;
(nv) To the best of Seller’s 's knowledge, each there has been no default on any senior mortgage loan relating to a Mortgaged Property that has not been cured by a Person other than Seller or an affiliate thereof;
(w) Each Mortgage contains customary and enforceable provisions that render the rights and remedies Loan accrues interest at a fixed rate;
(x) As of the holder thereof adequate for Statistical Calculation Date (A) the realization against the Mortgaged Property of the benefits of the security, including (i) in the case of a Mortgage designated as a deed of trust, by trustee’s sale, and (ii) otherwise by judicial foreclosure or if applicable, non-judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and foreclosure on, or trustee’s sale of, the Mortgaged Property pursuant weighted average remaining term to the proper procedures, the holder maturity of the Mortgage Loans on a contractual basis is approximately 244 months; (B) the Mortgage Interest Rates on the Mortgage Loans range from approximately 6.00% to approximately 19.74%; and (C) the weighted average Mortgage Interest Rate of the Mortgage Loans is approximately 12.31%.
(y) As of the Statistical Calculation Date, approximately 22.52% of the Mortgage Loans (by Principal Balance) are secured by real property improved by individual condominium units, planned unit development or two-to-four family residences erected thereon, and approximately 77.48% of the Mortgage Loans (by Principal Balance) are secured by real property with a one-family residence erected thereon;
(z) As of the Statistical Calculation Date, no Mortgage Loan will be able to deliver good has a Principal Balance in excess of $100,000.00, and merchantable title the average Principal Balance of the Mortgage Loans was approximately $48,728.20;
(aa) This Agreement constitutes a valid transfer and assignment to the Depositor of all right, title and interest of Seller in and to the outstanding Principal Balances with respect to the Mortgage Loans, all monies due or to become due with respect thereto, all proceeds of such outstanding Principal Balances, and all other property subject relating to any senior liens. such outstanding Principal Balances;
(bb) To the best of Seller’s knowledge, there is no homestead or other exemption available to the Mortgagor which would interfere with such right to foreclose;
(o) With respect to each Mortgage constituting a deed of trust, either a trustee, duly qualified under applicable law to serve as such, has been properly designated and currently so serves and is named in such Mortgage or if no duly qualified trustee has been properly designated and so serves, the Mortgage contains satisfactory provisions for the appointment of such trustee by the holder of the Mortgage at no cost or expense to such holder, and no fees or expenses are or will become payable by the Purchaser to the trustee under the deed of trust, except in connection with a trustee’s sale after default by the Mortgagor;
(p) There are no defaults by Seller in complying with the terms of the Mortgage, and to the best of Seller’s knowledge, all other material taxes (except with respect to the Mortgage Loan with loan number 637739, which has a tax delinquency of less than $15.00), governmental assessments, water, sewer and municipal charges, leasehold payments or ground rents or other outstanding charges affecting the Mortgaged Property other than Permitted Liens which previously became due and owing have been paid;
(q) The Mortgage Note or Loan Agreement is not and has not been secured by any collateral, pledged account or other security other than the lien of the corresponding Mortgage and to the best of Seller’s 's knowledge, no Mortgage Loan Mortgagor is secured by more than one Mortgaged Property;
(r) There is no material default, breach insolvent or event of acceleration existing under the Mortgage or the applicable Mortgage Note or Loan Agreement; bankrupt and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration, and none of (i) the Seller and any of its affiliates (ii) any servicer or subservicer and (iii) to the best of Seller’s knowledge, any prior mortgagee, of any Mortgage Loan has waived any material default, breach or event of acceleration; no foreclosure action is threatened or has been commenced with respect to the any Mortgage Loan;
(scc) There To the best of Seller's knowledge, there exists no violation of any local, state, or federal environmental law, rule or regulation with respect to the Mortgaged Property which violation has or could have a material adverse effect on the market value of such Mortgaged Property, and the Seller has no knowledge of any pending action or proceeding directly involving the Mortgaged Property in which compliance with any environmental law, rule or regulation is an issue; and
(dd) To the best of Seller's knowledge, no obligation fraud, error, negligence, misrepresentation or material omission of fact with respect to a Mortgage Loan has taken place on the part of the Seller or any other party to make any payments with respect to the related Mortgage Loan in addition to the Monthly Payments required to be made by the applicable Mortgagor and except in the case of the undrawn portion of the HELOCs as of the Cut-off Date, the Mortgage Note or Loan Agreement with respect to any Mortgage Loan does not permit or obligate the Seller to make future advances to the Mortgagor at the option of the Mortgagor;
(t) The Seller has not advanced funds for the payment of any interest or principal amounts due on any Mortgage Loan;.
Appears in 1 contract
Samples: Mortgage Loan Purchase and Servicing Agreement (Bear Stearns Asset Backed Securities Inc)
Representations and Warranties Relating to the Mortgage Loans. As to each Mortgage Loan (and the related Mortgage, Mortgage Notes or Loan Agreements, as applicable, Assignments and Mortgaged Property), Seller shall be deemed to make the following representations and warranties to Purchaser and Indenture Trustee as of the Closing DateDate (except as otherwise specified below).
(a) The information set forth in the Mortgage Loan Schedule is complete, true and correct in all material respects;
(b) None 99.75% of the Mortgage Loans by Stated Principal Balance have no payment which is greater than 29 days past due and the remainder none of the Mortgage Loans have no a payment which is greater than 59 days past due. No Mortgage Loan has been dishonored. To the best of Seller’s 's knowledge, no Mortgage Loan has been dishonored and there are no material defaults under the terms of the Mortgage Loan, except as set forth in this paragraph;
(c) To the best of Seller’s 's knowledge, there is no valid offset, right of rescission, defense or counterclaim of any obligor under any Mortgage Note, Loan Agreement or Mortgage, including the obligation of the Mortgagor to pay the unpaid principal of or interest on such Mortgage Note or Loan Agreement, and any applicable right of rescission has expired, nor will the operation of any of the terms of such Mortgage Note, Loan Agreement or Mortgage, or the exercise of any right thereunder, render either the Mortgage Note, Loan Agreement or the Mortgage unenforceable, in whole or in part, or subject to any right of rescission, set-off, recoupment, counterclaim or defense, including, without limitation, the defense of usury, and no such right of rescission, set-off, recoupment, counterclaim or defense has been asserted with respect thereto. To the best of Seller’s 's knowledge, no Mortgage Loan is subject to any pending bankruptcy, insolvency, reorganization or moratorium;
(d) Other than amounts that constitute Permitted Liens, to the best of Seller’s 's knowledge, there are no mechanics’ ' liens or similar liens or claims for work, labor or material affecting any Mortgaged Property which have been filed (and no rights are outstanding that under law could give rise to such liens), which are or may be a lien prior to, or equal with, the lien of such Mortgage;
(e) To the best of Seller’s 's knowledge, as of the Closing Date, there was and there currently is no material damage to any Mortgaged Property. To the best of Seller’s 's knowledge, there is no proceeding pending or threatened for the total or partial condemnation of any of the Mortgaged Properties. The Seller has not received notification that any such proceedings are scheduled to commence at a future date.
(f) To the best of Seller’s 's knowledge, each Mortgage is a valid, subsisting, enforceable and perfected first, second first or third more junior lien on the Mortgaged Property securing the related Mortgage Note or Loan Agreement, including all buildings on the Mortgaged Property and all installations and mechanical, electrical, plumbing, heating and air conditioning systems affixed to such buildings, and all additions, alterations and replacements made at any time with respect to the foregoing securing the Mortgage Note or Loan Agreement’s 's original principal balance subject to principles of equity, bankruptcy, insolvency and other laws of general application affecting the rights of creditors. Each Mortgaged Property is owned by the Mortgagor in fee simple and is free and clear of all adverse claims, encumbrances and liens other than Permitted Liens having priority over the lien of the Mortgage. Any security agreement, chattel mortgage or equivalent document related to and delivered in connection with the Mortgage Loan establishes and creates a valid, subsisting enforceable, and perfected lien and security interest on the property described therein, and immediately prior to the sale of such Mortgage Loan to the Purchaser pursuant to this AgreementAgreement and the related Term Sheet, the Seller had full right to sell and assign the same to the Purchaser;
(g) Each Mortgage Loan complies with, and the Seller has complied with, applicable local, state and federal laws, regulations and other requirements including, without limitation, usury, equal credit opportunity, real estate settlement procedures, the Federal Truth-In-Lending Act and disclosure laws and all applicable predatory and abusive lending laws, and the consummation of the transactions contemplated hereby, including without limitation, the receipt of interest by the owner of such Mortgage Loan, will not involve the violation of any such laws, rules or regulations. None Not more than two percent (2%) of the Group I Mortgage Loans and not more than 30% of the Group II Mortgage Loans are classified as a “"high cost” " loan under Section 32 of the Home Ownership and Equity Protection Act of 1994. Each Mortgage Loan is being (and with respect to the Mortgage Loans originated by the Seller or correspondent lenders has been) serviced in accordance with Accepted Servicing Practices and applicable state and federal laws, including, without limitation, the Federal Truth-In-Lending Act and other consumer protection laws, real estate settlement procedures, usury, equal credit opportunity and disclosure laws.. Seller shall maintain in its possession, available for the Purchaser's inspection, as appropriate, and shall deliver to the Purchaser or its designee upon demand, evidence of compliance with all such requirements;
(h) Neither the Seller nor, to the best of Seller’s knowledge, has nor any prior holder of any Mortgage Loan has in any material manner impaired, waived, altered or modified the Mortgage, Mortgage Note or Loan Agreement (except that a Mortgage Loan may have been modified by a written instrument (a copy of which is in the Mortgage File and the terms of which are reflected on the Mortgage Loan Schedule)) which has been recorded, if necessary to protect the interests of the owner of such Mortgage Loan; satisfied, canceled, rescinded or subordinated such Mortgage in whole or in part; released the applicable Mortgaged Property in whole or in part from the lien of such Mortgage; or executed any instrument of cancellation, rescission or satisfaction with respect thereto. No instrument of release or waiver has been executed in connection with any Mortgage Loan, and no Mortgagor has been released, in whole or in part from its obligations in connection with a Mortgage Loan;
(i) For loans originated by the Seller or correspondent lenders, a A property profile, title search, limited coverage policy or title insurance policy was obtained with respect to each Mortgage Loan, to the extent consistent with the normal credit and underwriting policies of Seller.
(j) To the best of Seller’s 's knowledge, all of the improvements which were included for the purpose of determining the Appraised Value of the Mortgaged Property lie wholly within the boundaries and building restriction lines of such property (and wholly within the project with respect to a condominium unit), and no improvements on adjoining properties encroach upon the Mortgaged Property;
(k) To the best of Seller’s 's knowledge, all parties that have had any interest in the Mortgage, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the period in which they held and disposed of such interest, were)
(A) in compliance with or exempt from any and all applicable licensing requirements of the laws of the state wherein the Mortgaged Property is located, and (B) (1) organized under the laws of such state, or (2) qualified to do business in such state, or (3) federal savings and loan associations or national banks having principal offices in such state, or (4) not doing business in such state;
(l) Each Mortgage Note or Loan Agreement and the applicable Mortgage are original and genuine, and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency, reorganization, moratorium, receivership and other similar laws relating to creditors’ ' rights generally or by equitable principles (regardless of whether such enforcement is considered in a proceeding in equity or at law) and the Seller has taken all action necessary to transfer such rights of enforceability to the Purchaser. To the best of Seller’s knowledge, all All parties to the Mortgage Note or Loan Agreement and the Mortgage had legal capacity to execute the Mortgage Note or Loan Agreement and the Mortgage and each Mortgage Note or Loan Agreement and Mortgage has been duly and properly executed by such parties;
(m) Other than with respect to the undrawn portion of the HELOCs as of the Cut-off Date, the The proceeds of the Mortgage Loan have been fully disbursed; there is no requirement for future advances thereunder and any and all requirements as to completion of any on-site or off-site improvements. All costs, fees and expenses incurred in making, closing or recording the Mortgage Loan were paid and the Mortgagor is not entitled to any refund of amounts paid or due under the Mortgage Note or Loan Agreement or Mortgage;
(n) To the best of Seller’s knowledge, each Each Mortgage contains customary and enforceable provisions that render the rights and remedies of the holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security, including (i) in the case of a Mortgage designated as a deed of trust, by trustee’s 's sale, and (ii) otherwise by judicial foreclosure or if applicable, non-judicial foreclosure. Upon default by a Mortgagor on a Mortgage Loan and foreclosure on, or trustee’s 's sale of, the Mortgaged Property pursuant to the proper procedures, the holder of the Mortgage Loan will be able to deliver good and merchantable title to the property subject to any senior liens. To the best of Seller’s knowledge, there There is no homestead or other exemption available to the Mortgagor which would interfere with such right to foreclose;
(o) With respect to each Mortgage constituting a deed of trust, either a trustee, duly qualified under applicable law to serve as such, has been properly designated and currently so serves and is named in such Mortgage or if no duly qualified trustee has been properly designated and so serves, the Mortgage contains satisfactory provisions for the appointment of such trustee by the holder of the Mortgage at no cost or expense to such holder, and no fees or expenses are or will become payable by the Purchaser to the trustee under the deed of trust, except in connection with a trustee’s 's sale after default by the Mortgagor;
(p) There are no defaults by Seller in complying with the terms of the Mortgage, and to the best of Seller’s knowledge, 's knowledge all other material taxes (except with respect to the Mortgage Loan with loan number 637739, which has a tax delinquency of less than $15.00)taxes, governmental assessments, water, sewer and municipal charges, leasehold payments or ground rents or other outstanding charges affecting the Mortgaged Property other than Permitted Liens which previously became due and owing have been paid;
(q) The Mortgage Note or Loan Agreement is not and has not been secured by any collateral, pledged account or other security other than the lien of the corresponding Mortgage and to such Mortgage does not serve as security for any other obligation (other than the best of Seller’s knowledge, related first lien mortgage and other Permitted Liens) and no Mortgage Loan is secured by more than one Mortgaged Property;
(r) There is no material default, breach or event of acceleration existing under the Mortgage or the applicable Mortgage Note or Loan Agreement; and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration, and none of (i) the Seller and any of its affiliates (ii) any servicer or subservicer and (iii) to the best of Seller’s knowledge, any prior mortgagee, of any Mortgage Loan has waived any material default, breach or event of acceleration; no foreclosure action is threatened or has been commenced with respect to the Mortgage Loan;
(s) There is no obligation on the part of the Seller or any other party to make any payments with respect to the related Mortgage Loan in addition to the Monthly Payments required to be made by the applicable Mortgagor and except in the case of the undrawn portion of the HELOCs as of the Cut-off Date, the Mortgage Note or Loan Agreement with respect to any Mortgage Loan does not permit or obligate the Seller to make future advances to the Mortgagor at the option of the Mortgagor;
(t) The Seller has not advanced funds, or induced, solicited or knowingly received any advance of funds by a party other than the Mortgagor, directly or indirectly, for the payment of any interest or principal amounts due on any amount required by the Mortgage Loan;
Appears in 1 contract
Samples: Mortgage Loan Purchase and Servicing Agreement (Irwin Whole Loan Home Equity Trust 2004 A)
