Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows: (i) The Seller has been duly created and is validly existing as a New York Commercial Bank under the laws of the state of New York; (ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject; (iii) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law; (iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder; (v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement; (vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing; (vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New York; (viii) With respect to each Mortgage Loan: (a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein; (b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same; (c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loan; (d) as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage; (e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation; (f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination; (g) to the best of the Seller's knowledge, all taxes, governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid; (h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor; (i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage; (j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction; (k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property; (l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC; (m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration; (n) Each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property is located; (o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100% of the Mortgage Loans measured by Principal Balance were to be secured by owner-occupied residences and no more than 0% of the Mortgage Loans measured by Principal Balance secured by non-owner-occupied residences; (p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained; (q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%; (r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value; (s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(i) or (a)(ii) above; and (t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note or Assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (ii) be accruing interest at a rate of interest at least equal to that of the defected Mortgage Loan, (iii) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp)
Representations, Warranties and Agreements of Seller. (a) A. The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) 1. The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) 2. The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) 3. This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) 4. The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No 0. Xx litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) 6. The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) 7. The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) 8. With respect to each Mortgage Loan:
(a1) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b2) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c3) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d4) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e5) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f6) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g7) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) 8) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i9) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j10) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k11) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l12) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m13) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n14) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o15) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 10095.38% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied primary residences and no more than 04.62% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by non-owner-occupied residencessecond homes;
(p16) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q17) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r18) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s19) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t20) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(21) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(22) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION 13 Section 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION Section 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 2001-2)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkIllinois;
(viiivii) With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied residences and no more than 0% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by non-owner-occupied residences;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(u) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances)respects, (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION 13 Section 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto or Mortgage Loan purchased pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreementencumbrances, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION Section 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 2001-1)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing and in good standing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) The Seller has all requisite corporate power, authority and capacity to enter into this Agreement and to perform the obligations required of it hereunder. This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law. No consent, approval, authorization or order of or registration with, or notice to, any governmental authority or court is required, under state or federal law prior to the execution, delivery, performance of or compliance by the Seller with this Agreement or the consummation by the Seller with any other transaction contemplated hereby;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) With respect to each Mortgage Loan:
(a1) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b2) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the samesame and, upon the Seller's receipt of the Purchase Price, the Purchaser shall own and hold such Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature;
(c3) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d4) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e5) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f6) that each Mortgage Loan complies in with all material respects with applicable state or federal laws, regulations and other requirements, pertaining to including, but not limited to, usury, equal credit opportunity opportunity, truth-in-lending and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g7) to the best of the Seller's knowledge, all taxesinsurance premiums, water, sewer and municipal charges, leasehold payments and ground rents previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) 8) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i9) that each Mortgage is a valid and enforceable perfected first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j10) neither the Seller nor any prior holder of any Mortgage or Mortgage Note has, except as the Mortgage File may reflect, impaired, waived, altered or modified the Mortgage or Mortgage Note in any material respect; , except by a written instrument which has been recorded, if necessary to protect the interests of the Purchaser and which has been delivered to the Purchaser. The substance of any such waiver, alteration or modification has been approved by the issuer of any primary mortgage insurance policy covering the Mortgage Loan and title insurer, to the extent required by the policies, and its terms are reflected in the Mortgage Loan Schedule. No Mortgage has been satisfied, cancelled or subordinated such Mortgage in whole or in part; released such No Mortgaged Property has been released in whole or in part from the lien of the Mortgage; or executed any No instrument of release, cancellation, modification or satisfactionsatisfaction has been executed with respect to the Mortgage Loan;
(k11) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l12) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m13) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and and, to the best of the Seller's knowledge, no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n14) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o15) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100approximately 97.00% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied residences and no more than 0approximately 3.00% of the Mortgage Loans measured by Principal Balance principal balance were secured by non-owner-occupied second home residences;
(p16) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q17) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 9595.00%;
(r18) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s19) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note or Assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (ii) be accruing interest at a rate of interest at least equal to that of the defected Mortgage Loan, (iii) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.;
Appears in 1 contract
Samples: Whole Loan Purchase Agreement (Abn Amro Mort Corp Multi Class Mort Pass THR Cert Ser 2003-4)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing as a New York Commercial Federal Savings Bank under the laws of the state of New YorkUnited States;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100% of the Mortgage Loans measured by Principal Balance were to be secured by owner-occupied residences and no more than 0% of the Mortgage Loans measured by Principal Balance secured by non-owner-occupied residences;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note or Assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (ii) be accruing interest at a rate of interest at least equal to that of the defected Mortgage Loan, (iii) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing as a New York Commercial Federal Savings Bank under the laws of the state of New YorkUnited States;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100% of the Mortgage Loans measured by Principal Balance were to be secured by owner-occupied residences and no more than 0% of the Mortgage Loans measured by Principal Balance secured by non-owner-occupied residences;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note or Assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (ii) be accruing interest at a rate of interest at least equal to that of the defected Mortgage Loan, (iii) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied residences and no more than 0% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by non-owner-occupied residences;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(u) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note or Assignment assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (ii) be accruing interest at a rate of interest at least equal to that of the defected Mortgage Loan, (iii) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.its
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 1999-7)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing and in good standing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) The Seller has all requisite corporate power, authority and capacity to enter into this Agreement and to perform the obligations required of it hereunder. This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law. No consent, approval, authorization or order of or registration with, or notice to, any governmental authority or court is required, under state or federal law prior to the execution, delivery, performance of or compliance by the Seller with this Agreement or the consummation by the Seller with any other transaction contemplated hereby;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) With respect to each Mortgage Loan:
(a1) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b2) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the samesame and, upon the Seller's receipt of the Purchase Price, the Purchaser shall own and hold such Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature;
(c3) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d4) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e5) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f6) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity opportunity, disclosure laws and disclosure all applicable anti-predatory laws, and each Mortgage Loan was not usurious at the time of origination;
(g7) to the best of the Seller's knowledge, all taxesinsurance premiums, water, sewer and municipal charges, leasehold payments and ground rents previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) 8) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i9) that each Mortgage is a valid and enforceable perfected first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j10) neither the Seller nor any prior holder of any Mortgage or Mortgage Note has, except as the Mortgage File may reflect, impaired, waived, altered or modified the Mortgage or Mortgage Note in any material respect; , except by a written instrument which has been recorded, if necessary to protect the interests of the Purchaser and which has been delivered to the Purchaser. The substance of any such waiver, alteration or modification has been approved by the issuer of any primary mortgage insurance policy covering the Mortgage Loan and title insurer, to the extent required by the policies, and its terms are reflected in the Mortgage Loan Schedule. No Mortgage has been satisfied, cancelled or subordinated such Mortgage in whole or in part; released such No Mortgaged Property has been released in whole or in part from the lien of the Mortgage; or executed any No instrument of release, cancellation, modification or satisfactionsatisfaction has been executed with respect to the Mortgage Loan;
(k11) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l12) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m13) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and and, to the best of the Seller's knowledge, no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n14) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o15) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100approximately 93.95% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied residences and no more than 0approximately 6.05% of the Mortgage Loans measured by Principal Balance principal balance were secured by non-owner-occupied second home residences;
(p16) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q17) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 9595.00%;
(r18) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s19) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note or Assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (ii) be accruing interest at a rate of interest at least equal to that of the defected Mortgage Loan, (iii) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.;
Appears in 1 contract
Samples: Whole Loan Purchase Agreement (Abn Amro Mort Sec Multi Class Mort PSTHR Certs Ser 2003-13)
Representations, Warranties and Agreements of Seller. (a) A. The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) 1. The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) 2. The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) 3. This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) 4. The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) 5. No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) 6. The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) 7. The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) 8. With respect to each Mortgage Loan:
(a1) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b2) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c3) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d4) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e5) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f6) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g7) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) 8) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i9) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j10) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k11) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l12) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m13) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n14) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o15) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 10097.46% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied primary residences and no more than 02.54% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by non-owner-occupied residencessecond homes;
(p16) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q17) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r18) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s19) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t20) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(21) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(22) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION 13 Section 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION Section 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 2001-3)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(ia) The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(iib) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iiic) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(ivd) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(ve) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vif) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(viig) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viiih) With respect to each Mortgage Loan:
(ai) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(bii) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(ciii) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(div) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(ev) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged PropertyMORTGAGED PROPERTY") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(fvi) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity opportunity, disclosure laws and disclosure all applicable anti-predatory laws, and each Mortgage Loan was not usurious at the time of origination;
(gvii) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(hviii) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(iix) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(jx) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(kxi) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(lxii) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(mxiii) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(nxiv) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(oxv) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100approximately 94.47% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied residences and no more than 0approximately 5.53% of the Mortgage Loans measured by Principal Balance principal balance were secured by non-owner-occupied second home residences;
(pxvi) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(qxvii) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(rxviii) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(sxix) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(txx) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(xxi) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy;
(xxii) No Loan is a "high-cost home loan" as defined in the Georgia Fair Lending Act, as amended, or in the New York Predatory Lending Law, codified as N.Y. Banking Law Section 6-l, N.Y. Gen. Bus. Law Section 771-a, and N.Y. Real Prop. Acts Law Section 1302; the Arkansas Home Loan Protection Act, as amended; or the Kentucky Revised Statutes Section 360.100, as amended;
(xxiii) no Loan at the time of origination was a "high-cost loan" as defined in the Home Ownership and Equity Protection Act of 1994;
(xxiv) no Loan originated after October 1, 2002, had prepayment penalties in excess of three years after its date of origination;
(xxv) none of the proceeds of any Loan were used to finance the purchase of single premium credit insurance policies. and
(xxvi) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). If the breach of representation and warranty that gave rise to the obligation to repurchase or substitute a Loan pursuant to this Section 8 was the representation set forth in clause (vi) of this SECTION 8, then the Seller shall pay to the Trust Fund, concurrently with and in addition to the remedies provided in the preceding sentence, an amount equal to any liability, penalty or reasonable expense that was actually incurred and paid out of or on behalf of the Trust Fund, and that directly resulted from such breach, or if incurred and paid by the Trust Fund thereafter, concurrently with such payment. Except as set forth in SECTION 13 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Multi-Class Mortgage Pass-Through Certificates Series 2003-9)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(ia) The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(iib) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iiic) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(ivd) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(ve) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vif) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(viig) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viiih) With respect to each Mortgage Loan:
(ai) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(bii) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(ciii) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(div) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(ev) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged PropertyMORTGAGED PROPERTY") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(fvi) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity opportunity, disclosure laws and disclosure all applicable anti-predatory laws, and each Mortgage Loan was not usurious at the time of origination;
(gvii) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(hviii) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(iix) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(jx) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(kxi) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(lxii) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(mxiii) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(nxiv) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(oxv) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100approximately 94.97% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied residences and no more than 0approximately 5.03% of the Mortgage Loans measured by Principal Balance principal balance were secured by non-owner-occupied second home residences;
(pxvi) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(qxvii) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(rxviii) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(sxix) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(txx) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to Section 1.860 G-2(f) of the REMIC provisions or any similar rule;
(xxi) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(xxii) no Loan is a "high-cost home loan" as defined in the Georgia Fair Lending Act, as amended, or in the New York Predatory Lending Law, codified as N.Y. Banking Law Section 6-l, N.Y. Gen. Bus. Law Section 771-a, and N.Y. Real Prop. Acts Law Section 1302; the Arkansas Home Loan Protection Act, as amended; or the Kentucky Revised Statutes Section 360.100, as amended. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). If the breach of representation and warranty that gave rise to the obligation to repurchase or substitute a Loan pursuant to this Section 8 was the representation set forth in clause (vi) of this SECTION 8, then the Seller shall pay to the Trust Fund, concurrently with and in addition to the remedies provided in the preceding sentence, an amount equal to any liability, penalty or reasonable expense that was actually incurred and paid out of or on behalf of the Trust Fund, and that directly resulted from such breach, or if incurred and paid by the Trust Fund thereafter, concurrently with such payment. Except as set forth in SECTION 13 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Multi Cla Mor Pas THR Cer Se 2003-10)
Representations, Warranties and Agreements of Seller. (a) A. The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) 1. The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) 2. The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) 3. This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) 4. The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) 5. No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) 6. The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) 7. The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) 8. With respect to each Mortgage Loan:
(a1) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b2) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c3) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d4) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e5) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f6) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g7) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) 8) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i9) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j10) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k11) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l12) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m13) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n14) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o15) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 10098.75% of the Group I Mortgage Loans and 97.97% of the Group II Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied primary residences and no more than 01.25% of the Group I Mortgage Loans and 2.03% of the Group II Mortgage Loans measured by Principal Balance principal balance were to be secured by non-owner-occupied residencessecond homes;
(p16) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q17) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r18) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s19) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t20) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(21) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(22) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION 13 Section 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION Section 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 2001-1a)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viiivii) With respect to each Mortgage Loan:
(a1) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b2) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the samesame and, upon the Seller's receipt of the Purchase Price, the Purchaser shall own and hold such Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature;
(c3) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d4) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e5) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f6) that each Mortgage Loan complies in with all material respects with applicable state or federal laws, regulations and other requirements, pertaining to including, but not limited to, usury, equal credit opportunity opportunity, truth-in-lending and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g7) to the best of the Seller's knowledge, all taxesinsurance premiums, water, sewer and municipal charges, leasehold payments and ground rents previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) 8) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i9) that each Mortgage is a valid and enforceable perfected first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j10) neither the Seller nor any prior holder of any Mortgage or Mortgage Note has, except as the Mortgage File may reflect, impaired, waived, altered or modified the Mortgage or Mortgage Note in any material respect; , except by a written instrument which has been recorded, if necessary to protect the interests of the Purchaser and which has been delivered to the Purchaser. The substance of any such waiver, alteration or modification has been approved by the issuer of any primary mortgage insurance policy covering the Mortgage Loan and title insurer, to the extent required by the policies, and its terms are reflected in the Mortgage Loan Schedule. No Mortgage has been satisfied, cancelled or subordinated such Mortgage in whole or in part; released such No Mortgaged Property has been released in whole or in part from the lien of the Mortgage; or executed any No instrument of release, cancellation, modification or satisfactionsatisfaction has been executed with respect to the Mortgage Loan;
(k11) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l12) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m13) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and and, to the best of the Seller's knowledge, no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n14) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o15) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100approximately 96.12% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied residences and no more than 0approximately 3.88% of the Mortgage Loans measured by Principal Balance principal balance were secured by non-owner-occupied second home residences;
(p16) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q17) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 9595.00%;
(r18) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s19) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t20) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale 1.860 G-2(f) of the REMIC provisions or any similar rule;
21) that no Mortgage Loans Loan permits negative amortization or the deferral of accrued interest;
22) pursuant to the Purchaser terms of the applicable Mortgage, all buildings or other improvements upon each Mortgaged Property are insured by an insurer acceptable to FNMA or FHLMC against loss by fire, hazards of extended coverage and shall inure such other hazards as are customary in the area where the Mortgaged Property is located pursuant to insurance policies conforming to the benefit requirements of the Purchaser, notwithstanding any restrictive FNMA or qualified endorsement on any Mortgage Note or Assignment of Mortgage or the examination FHLMC. If upon origination of any Mortgage File. Upon discovery by either the SellerLoan, the Purchaser or its designees of Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a breach of any flood insurance policy meeting the requirements of the foregoing representations or warranties current guidelines of the Seller Federal Insurance Administration is in effect which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice policy conforms to the otherrequirements of FNMA or FHLMC. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of All individual insurance policies contain a representation or warranty, standard mortgagee clause naming the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, its successors and assigns as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (ii) be accruing interest at a rate of interest at least equal to that of the defected Mortgage Loan, (iii) have a remaining term to stated maturity not greater thanmortgagee, and not more than two years less than, that of all premiums thereon have been paid. Each Mortgage obligates the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of Mortgagor thereunder to maintain the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller hazard insurance policy at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.the
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mort Corp Multi Class Mort Pass THR Cert Ser 2003-3)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing as a New York Commercial Federal Savings Bank under the laws of the state of New YorkUnited States;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viiivii) With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and and, to the best of the Seller's knowledge, the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(nm) Each to the best of the Seller's knowledge, that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(on) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied residences and no more than 0% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by non-owner-occupied residences;
(po) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(qp) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(rq) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(sr) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(ts) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to 'SS'1.860 G-2(f) of the REMIC provisions or any similar rule; and
(t) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION 13 Section 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION Section 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 2000-3)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100% of the Mortgage Loans measured by Principal Balance were to be secured by owner-occupied residences and no more than 0% of the Mortgage Loans measured by Principal Balance secured by non-owner-occupied residences;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(i) or (a)(ii) above; and
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note or Assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (ii) be accruing interest at a rate of interest at least equal to that of the defected Mortgage Loan, (iii) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.material
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 1999-5)
Representations, Warranties and Agreements of Seller. (a) A. The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) i. The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) . The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) . This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) . The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) v. No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) . The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) . The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) . With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged PropertyMORTGAGED PROPERTY") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 10096.48% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied primary residences and no more than 03.52% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by non-owner-occupied residencessecond homes;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to section 1.860 G-2(f) of the REMIC provisions or any similar rule;
(u) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 2002-4)
Representations, Warranties and Agreements of Seller. (a) A. The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) i. The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) . The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) . This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) . The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) v. No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) . The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) . The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) . With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged PropertyMORTGAGED PROPERTY") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 10096.01% of the Mortgage Loans Loans, measured by Principal Balance were to be secured by owner-occupied primary residences and no more than 03.99% of the Mortgage Loans Loans, measured by Principal Balance were to be secured by non-owner-occupied residencessecond homes;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 9594.44%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard toss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(u) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Mort Ps THR CRTS Ser 2003-7)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing and in good standing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) The Seller has all requisite corporate power, authority and capacity to enter into this Agreement and to perform the obligations required of it hereunder. This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law. No consent, approval, authorization or order of or registration with, or notice to, any governmental authority or court is required, under state or federal law prior to the execution, delivery, performance of or compliance by the Seller with this Agreement or the consummation by the Seller with any other transaction contemplated hereby;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) With respect to each Mortgage Loan:
(a1) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b2) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the samesame and, upon the Seller's receipt of the Purchase Price, the Purchaser shall own and hold such Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature;
(c3) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d4) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e5) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f6) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity opportunity, disclosure laws and disclosure all applicable anti-predatory laws, and each Mortgage Loan was not usurious at the time of origination;
(g7) to the best of the Seller's knowledge, all taxesinsurance premiums, water, sewer and municipal charges, leasehold payments and ground rents previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) 8) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i9) that each Mortgage is a valid and enforceable perfected first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j10) neither the Seller nor any prior holder of any Mortgage or Mortgage Note has, except as the Mortgage File may reflect, impaired, waived, altered or modified the Mortgage or Mortgage Note in any material respect; , except by a written instrument which has been recorded, if necessary to protect the interests of the Purchaser and which has been delivered to the Purchaser. The substance of any such waiver, alteration or modification has been approved by the issuer of any primary mortgage insurance policy covering the Mortgage Loan and title insurer, to the extent required by the policies, and its terms are reflected in the Mortgage Loan Schedule. No Mortgage has been satisfied, cancelled or subordinated such Mortgage in whole or in part; released such No Mortgaged Property has been released in whole or in part from the lien of the Mortgage; or executed any No instrument of release, cancellation, modification or satisfactionsatisfaction has been executed with respect to the Mortgage Loan;
(k11) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l12) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m13) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and and, to the best of the Seller's knowledge, no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n14) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o15) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100approximately 93.6% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied residences and no more than 0approximately 6.4% of the Mortgage Loans measured by Principal Balance principal balance were secured by non-owner-occupied second home residences;
(p16) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q17) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 9595.00%;
(r18) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s19) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t20) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss. It 1.860 G-2(f) of the REMIC provisions or any similar rule;
21) that no Mortgage Loan permits negative amortization or the deferral of accrued interest;
22) pursuant to the terms of the applicable Mortgage, all buildings or other improvements upon each Mortgaged Property are insured by an insurer acceptable to FNMA or FHLMC against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the Mortgaged Property is understood located pursuant to insurance policies conforming to the requirements of FNMA or FHLMC. If upon origination of any Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and agreed that such flood insurance has been made available) a flood insurance policy meeting the representations requirements of the current guidelines of the Federal Insurance Administration is in effect which policy conforms to the requirements of FNMA or FHLMC. All individual insurance policies contain a standard mortgagee clause naming the Seller and warranties set forth in this SECTION 8 shall survive its successors and assigns as mortgagee, and all premiums thereon have been paid. Each Mortgage obligates the sale Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage Loans to obtain and maintain such insurance at such Mortgagor's cost and expense, and to seek reimbursement therefor from the Purchaser Mortgagor. Where required by state law or regulation, the Mortgagors have been given an opportunity to choose the carrier of the required hazard insurance policy, provided the policy is not a "master" or "blanket" hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and shall binding obligation of the insurer, is in full force and effect, and will be in full force and effect and inure to the benefit of the PurchaserPurchaser upon the consummation of the transactions contemplated by this Agreement. Seller has not engaged in, notwithstanding and has no knowledge of the Mortgagor's or any restrictive subservicer s having engaged in, any act or qualified omission which would impair the coverage of any such policy, the benefits of the endorsement on any Mortgage Note or Assignment of Mortgage provided for herein, or the examination validity and binding effect of any Mortgage File. Upon discovery by either the Sellereither, the Purchaser including, without limitation, no unlawful fee, commission, kickback or its designees of a breach of any of the foregoing representations other unlawful compensation or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered kind has been or (2) the interests of the Purchaser thereinwill be received, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery retained or its receipt of notice of realized by any such breach of a representation attorney, firm or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste other person or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (ii) be accruing interest at a rate of interest at least equal to that of the defected Mortgage Loan, (iii) have a remaining term to stated maturity not greater thanentity, and not more than two years less thanno such unlawful items have been received, that of the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for retained or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared realized by the Seller at its expense Seller. All flood insurance and shall be reasonably acceptable to the Purchaser, and the Purchaser shall hazard insurance premiums have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.been paid when due;
Appears in 1 contract
Samples: Whole Loan Purchase Agreement (Multi-Class Mortgage Pass-Through Cert Series 2003-12)
Representations, Warranties and Agreements of Seller. (a) A. The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) i. The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) . The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) . This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) . The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) v. No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) . The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) . The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) . With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged PropertyMORTGAGED PROPERTY") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 10093.67% of the Mortgage Loans measured by Principal Balance were to be secured by owner-occupied primary residences and no more than 06.33% of the Mortgage Loans measured by Principal Balance were to be secured by non-owner-occupied residencessecond homes;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard toss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(u) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing and in good standing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) The Seller has all requisite corporate power, authority and capacity to enter into this Agreement and to perform the obligations required of it hereunder. This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law. No consent, approval, authorization or order of or registration with, or notice to, any governmental authority or court is required, under state or federal law prior to the execution, delivery, performance of or compliance by the Seller with this Agreement or the consummation by the Seller with any other transaction contemplated hereby;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an subservicers servicing on behalf of the seller are approved conventional seller/servicer servicers for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) With respect to each Mortgage Loan:
(a1) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b2) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the samesame and, upon the Seller's receipt of the Purchase Price, the Purchaser shall own and hold such Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature;
(c3) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d4) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e5) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f6) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity opportunity, disclosure laws and disclosure all applicable anti-predatory laws, and each Mortgage Loan was not usurious at the time of origination;
(g7) to the best of the Seller's knowledge, all taxesinsurance premiums, water, sewer and municipal charges, leasehold payments and ground rents previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) 8) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i9) that each Mortgage is a valid and enforceable perfected first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j10) neither the Seller nor any prior holder of any Mortgage or Mortgage Note has, except as the Mortgage File may reflect, impaired, waived, altered or modified the Mortgage or Mortgage Note in any material respect; , except by a written instrument which has been recorded, if necessary to protect the interests of the Purchaser and which has been delivered to the Purchaser. The substance of any such waiver, alteration or modification has been approved by the issuer of any primary mortgage insurance policy covering the Mortgage Loan and title insurer, to the extent required by the policies, and its terms are reflected in the Mortgage Loan Schedule. No Mortgage has been satisfied, cancelled or subordinated such Mortgage in whole or in part; released such No Mortgaged Property has been released in whole or in part from the lien of the Mortgage; or executed any No instrument of release, cancellation, modification or satisfactionsatisfaction has been executed with respect to the Mortgage Loan;
(k11) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l12) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m13) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and and, to the best of the Seller's knowledge, no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n14) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o15) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100approximately 97.20% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied residences and no more than 0approximately 2.40% of the Mortgage Loans measured by Principal Balance principal balance were secured by non-owner-occupied second home residences;
(p16) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q17) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 9595.00%;
(r18) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s19) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t20) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale , without regard to Section 1.860 G-2(f) of the REMIC provisions or any similar rule;
21) that no Mortgage Loans Loan permits negative amortization or the deferral of accrued interest;
22) pursuant to the Purchaser and shall inure to the benefit terms of the Purchaserapplicable Mortgage, notwithstanding any restrictive all buildings or qualified endorsement on any Mortgage Note other improvements upon each Mortgaged Property are insured by an insurer acceptable to FNMA or Assignment FHLMC against loss by fire, hazards of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially extended coverage and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, other hazards as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (ii) be accruing interest at a rate of interest at least equal to that of the defected Mortgage Loan, (iii) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest are customary in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by area where the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that Mortgaged Property is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.located
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Multi-Class Mor Pas THR Cer Ser 2003-11)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(ia) The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(iib) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iiic) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(ivd) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(ve) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(viif) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viiig) With respect to each Mortgage Loan:
(ai) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(bii) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the samesame and, upon the Seller's receipt of the Purchase Price, the Purchaser shall own and hold such Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature;
(ciii) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(div) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(ev) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(fvi) that each Mortgage Loan complies in with all material respects with applicable state or federal laws, regulations and other requirements, pertaining to including, but not limited to, usury, equal credit opportunity opportunity, truth-in-lending and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(gvii) to the best of the Seller's knowledge, all taxesinsurance premiums, water, sewer and municipal charges, leasehold payments and ground rents previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(hviii) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(iix) that each Mortgage is a valid and enforceable perfected first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(jx) neither the Seller nor any prior holder of any Mortgage or Mortgage Note has, except as the Mortgage File may reflect, impaired, waived, altered or modified the Mortgage or Mortgage Note in any material respect; , except by a written instrument which has been recorded, if necessary to protect the interests of the Purchaser and which has been delivered to the Purchaser. The substance of any such waiver, alteration or modification has been approved by the issuer of any primary mortgage insurance policy covering the Mortgage Loan and title insurer, to the extent required by the policies, and its terms are reflected in the Mortgage Loan Schedule. No Mortgage has been satisfied, cancelled or subordinated such Mortgage in whole or in part; released such No Mortgaged Property has been released in whole or in part from the lien of the Mortgage; or executed any No instrument of release, cancellation, modification or satisfactionsatisfaction has been executed with respect to the Mortgage Loan;
(kxi) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(lxii) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(mxiii) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and and, to the best of the Seller's knowledge, no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(nxiv) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(oxv) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100approximately 95.63% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied residences and no more than 0approximately 4.37% of the Mortgage Loans measured by Principal Balance principal balance were secured by non-owner-occupied second home residences;
(pxvi) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(qxvii) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 9595.00%;
(rxviii) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(sxix) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(txx) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss. It 1.860 G-2(f) of the REMIC provisions or any similar rule;
(xxi) that no Mortgage Loan permits negative amortization or the deferral of accrued interest;
(xxii) pursuant to the terms of the applicable Mortgage, all buildings or other improvements upon each Mortgaged Property are insured by an insurer acceptable to FNMA or FHLMC against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the Mortgaged Property is understood located pursuant to insurance policies conforming to the requirements of FNMA or FHLMC. If upon origination of any Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and agreed that such flood insurance has been made available) a flood insurance policy meeting the representations requirements of the current guidelines of the Federal Insurance Administration is in effect which policy conforms to the requirements of FNMA or FHLMC. All individual insurance policies contain a standard mortgagee clause naming the Seller and warranties set forth in this SECTION 8 shall survive its successors and assigns as mortgagee, and all premiums thereon have been paid. Each Mortgage obligates the sale Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage Loans to obtain and maintain such insurance at such Mortgagor's cost and expense, and to seek reimbursement therefor from the Purchaser Mortgagor. Where required by state law or regulation, the Mortgagors have been given an opportunity to choose the carrier of the required hazard insurance policy, provided the policy is not a "master" or "blanket" hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and shall binding obligation of the insurer, is in full force and effect, and will be in full force and effect and inure to the benefit of the PurchaserPurchaser upon the consummation of the transactions contemplated by this Agreement. Seller has not engaged in, notwithstanding and has no knowledge of the Mortgagor's or any restrictive subservicer s having engaged in, any act or qualified omission which would impair the coverage of any such policy, the benefits of the endorsement on any Mortgage Note or Assignment of Mortgage provided for herein, or the examination validity and binding effect of any Mortgage File. Upon discovery by either the Sellereither, the Purchaser including, without limitation, no unlawful fee, commission, kickback or its designees of a breach of any of the foregoing representations other unlawful compensation or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered kind has been or (2) the interests of the Purchaser thereinwill be received, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery retained or its receipt of notice of realized by any such breach of a representation attorney, firm or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste other person or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (ii) be accruing interest at a rate of interest at least equal to that of the defected Mortgage Loan, (iii) have a remaining term to stated maturity not greater thanentity, and not more than two years less thanno such unlawful items have been received, that of the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for retained or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared realized by the Seller at its expense Seller. All flood insurance and shall be reasonably acceptable to the Purchaser, and the Purchaser shall hazard insurance premiums have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.been paid when due;
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Multi Cl Mort Ps THR Certs Ser 2003-6)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(ia) The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(iib) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iiic) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(ivd) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(ve) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vif) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(viig) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viiih) With respect to each Mortgage Loan:
(ai) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(bii) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(ciii) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(div) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(ev) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged PropertyMORTGAGED PROPERTY") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(fvi) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(gvii) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(hviii) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(iix) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(jx) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(kxi) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(lxii) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(mxiii) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(nxiv) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(oxv) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100approximately 95.52% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied residences and no more than 0approximately 4.48% of the Mortgage Loans measured by Principal Balance principal balance were secured by non-owner-occupied second home residences;
(pxvi) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(qxvii) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(rxviii) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(sxix) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(txx) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(xxi) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(xxii) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Multi Cl Mort Ps THR Certs Ser 2003-6)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(ia) The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(iib) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iiic) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(ivd) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(ve) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vif) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(viig) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viiih) With respect to each Mortgage Loan:
(ai) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(bii) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(ciii) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(div) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(ev) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged PropertyMORTGAGED PROPERTY") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(fvi) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity opportunity, disclosure laws and disclosure all applicable anti-predatory laws, and each Mortgage Loan was not usurious at the time of origination;
(gvii) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(hviii) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(iix) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(jx) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(kxi) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(lxii) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(mxiii) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(nxiv) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(oxv) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100approximately 94.47% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied residences and no more than 0approximately 5.53% of the Mortgage Loans measured by Principal Balance principal balance were secured by non-owner-occupied second home residences;
(pxvi) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(qxvii) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(rxviii) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(sxix) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(txx) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(xxi) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(xxii) no Loan is a "high-cost home loan" as defined in the Georgia Fair Lending Act, as amended, or in the New York Predatory Lending Law, codified as N.Y. Banking Law Section 6-l, N.Y. Gen. Bus. Law Section 771-a, and N.Y. Real Prop. Acts Law Section 1302; the Arkansas Home Loan Protection Act, as amended; or the Kentucky Revised Statutes Section 360.100, as amended. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). If the breach of representation and warranty that gave rise to the obligation to repurchase or substitute a Loan pursuant to this Section 8 was the representation set forth in clause (vi) of this SECTION 8, then the Seller shall pay to the Trust Fund, concurrently with and in addition to the remedies provided in the preceding sentence, an amount equal to any liability, penalty or reasonable expense that was actually incurred and paid out of or on behalf of the Trust Fund, and that directly resulted from such breach, or if incurred and paid by the Trust Fund thereafter, concurrently with such payment. Except as set forth in SECTION 13 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Multi-Class Mortgage Pass-Through Certificates Series 2003-9)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied residences and no more than 0% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by non-owner-occupied residences;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(u) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note or Assignment assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION 13 Section 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION Section 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 2000-2)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing as a New York Commercial Federal Savings Bank under the laws of the state of New YorkUnited States;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loan;
(d) as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller Depositor has not waived any default, breach, violation or event of acceleration;
(n) Each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 10097.67% of the Mortgage Loans measured by Principal Balance were to be secured by a primary, owner-occupied residences residence and no more than 02.33% of the Mortgage Loans measured by Principal Balance secured by non-non- owner-occupied residences;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note or Assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day ninety)- day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (ii) be accruing interest at a rate of interest at least equal to that of the defected Mortgage Loan, (iii) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION Section 13 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION Section 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied residences and no more than 0% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by non-owner-occupied residences;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to 'SS'1.860 G-2(f) of the REMIC provisions or any similar rule;
(u) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note or Assignment assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (ii) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iii) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION 13 Section 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION Section 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 1999-6)
Representations, Warranties and Agreements of Seller. (a) A. The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) i. The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) . The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) . This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) . The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) v. No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) . The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) . The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) . With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged PropertyMORTGAGED PROPERTY") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 10094.60% of the Mortgage Group I Loans and 83.59% of the Group II Loans, measured by Principal Balance were to be secured by owner-occupied primary residences and no more than 05.41% of the Mortgage Group I Loans and 16.41% of the Group II Loans, measured by Principal Balance were to be secured by non-owner-occupied residencessecond homes;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard toss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(u) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 2002-7)
Representations, Warranties and Agreements of Seller. (a) A. The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) i. The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) . The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) . This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) . The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) v. No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) . The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) . The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) . With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged PropertyMORTGAGED PROPERTY") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 10095.10% of the Group I Mortgage Loans and 95.71% of the Group II Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied primary residences and no more than 04.90% of the Group I Mortgage Loans and 4.29% of the Group II Mortgage Loans measured by Principal Balance principal balance were to be secured by non-owner-occupied residencessecond homes;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard toss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(u) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 2002-1a)
Representations, Warranties and Agreements of Seller. (a) A. The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) i. The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) . The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) . This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) . The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) v. No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) . The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) . The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) . With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged PropertyMORTGAGED PROPERTY") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 10094.31% of the Mortgage Group I Loans and 94.52% of the Group II Loans measured by Principal Balance principal balance were to be secured by owner-occupied primary residences and no more than 05.69% of the Mortgage Group I Loans and 5.75% of the Group II Loans measured by Principal Balance principal balance were to be secured by non-owner-occupied residencessecond homes;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard toss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(u) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 2002-5)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 10095.1% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-owner- occupied residences and no more than 04.9% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by non-owner-occupied residences;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to 'SS'.1.860 G-2(f) of the REMIC provisions or any similar rule;
(u) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION 13 Section 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION Section 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 2000-4)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing and in good standing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) The Seller has all requisite corporate power, authority and capacity to enter into this Agreement and to perform the obligations required of it hereunder. This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law. No consent, approval, authorization or order of or registration with, or notice to, any governmental authority or court is required, under state or federal law prior to the execution, delivery, performance of or compliance by the Seller with this Agreement or the consummation by the Seller with any other transaction contemplated hereby;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an subservicers servicing on behalf of the seller are approved conventional seller/servicer servicers for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) With respect to each Mortgage Loan:
(a1) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b2) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the samesame and, upon the Seller's receipt of the Purchase Price, the Purchaser shall own and hold such Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature;
(c3) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d4) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e5) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f6) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity opportunity, disclosure laws and disclosure all applicable anti-predatory laws, and each Mortgage Loan was not usurious at the time of origination;
(g7) to the best of the Seller's knowledge, all taxesinsurance premiums, water, sewer and municipal charges, leasehold payments and ground rents previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) 8) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i9) that each Mortgage is a valid and enforceable perfected first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j10) neither the Seller nor any prior holder of any Mortgage or Mortgage Note has, except as the Mortgage File may reflect, impaired, waived, altered or modified the Mortgage or Mortgage Note in any material respect; , except by a written instrument which has been recorded, if necessary to protect the interests of the Purchaser and which has been delivered to the Purchaser. The substance of any such waiver, alteration or modification has been approved by the issuer of any primary mortgage insurance policy covering the Mortgage Loan and title insurer, to the extent required by the policies, and its terms are reflected in the Mortgage Loan Schedule. No Mortgage has been satisfied, cancelled or subordinated such Mortgage in whole or in part; released such No Mortgaged Property has been released in whole or in part from the lien of the Mortgage; or executed any No instrument of release, cancellation, modification or satisfactionsatisfaction has been executed with respect to the Mortgage Loan;
(k11) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l12) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m13) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and and, to the best of the Seller's knowledge, no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n14) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o15) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100approximately 93.95% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied residences and no more than 0approximately 6.05% of the Mortgage Loans measured by Principal Balance principal balance were secured by non-owner-occupied second home residences;
(p16) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q17) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 9595.00%;
(r18) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s19) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t20) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale , without regard to Section 1.860 G-2(f) of the REMIC provisions or any similar rule;
21) that no Mortgage Loans Loan permits negative amortization or the deferral of accrued interest;
22) pursuant to the Purchaser and shall inure to the benefit terms of the Purchaserapplicable Mortgage, notwithstanding any restrictive all buildings or qualified endorsement on any Mortgage Note other improvements upon each Mortgaged Property are insured by an insurer acceptable to FNMA or Assignment FHLMC against loss by fire, hazards of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially extended coverage and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, other hazards as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (ii) be accruing interest at a rate of interest at least equal to that of the defected Mortgage Loan, (iii) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest are customary in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by area where the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that Mortgaged Property is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.located
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mort Sec Multi Class Mort PSTHR Certs Ser 2003-13)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing as a New York Commercial Bank under the laws of the state of New York;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New York;
(viii) With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loan;
(d) as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100% of the Mortgage Loans measured by Principal Balance were to be secured by owner-occupied residences and no more than 0% of the Mortgage Loans measured by Principal Balance secured by non-owner-occupied residences;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(i) or (a)(ii) above; and
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note or Assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (ii) be accruing interest at a rate of interest at least equal to that of the defected Mortgage Loan, (iii) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.the
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state of New York;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New York;
(viiivii) With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loan;
(d) as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100% of the Mortgage Loans measured by Principal Balance were to be secured by owner-occupied residences and no more than 0% of the Mortgage Loans measured by Principal Balance secured by non-owner-occupied residences;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(i) or (a)(ii) above; and
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note or Assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (ii) be accruing interest at a rate of interest at least equal to that of the defected Mortgage Loan, (iii) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp)
Representations, Warranties and Agreements of Seller. (a) A. The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) 1. The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) 2. The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) 3. This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) 4. The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) 5. No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) 6. The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) 7. The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) 8. With respect to each Mortgage Loan:
(a1) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b2) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c3) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d4) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e5) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f6) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g7) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) 8) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i9) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j10) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k11) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l12) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m13) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n14) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o15) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100[____]% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied primary residences and no more than 0[___]% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by non-owner-occupied residencessecond homes;
(p16) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q17) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r18) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s19) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t20) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(21) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(22) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION 13 Section 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION Section 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 2001-8)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(ia) The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(iib) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iiic) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(ivd) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(ve) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vif) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(viig) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viiih) With respect to each Mortgage Loan:
(ai) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(bii) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(ciii) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(div) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(ev) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged PropertyMORTGAGED PROPERTY") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(fvi) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity opportunity, disclosure laws and disclosure all applicable anti-predatory laws, and each Mortgage Loan was not usurious at the time of origination;
(gvii) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(hviii) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(iix) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(jx) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(kxi) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(lxii) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(mxiii) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(nxiv) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(oxv) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100approximately 97.50% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied residences and no more than 0approximately 2.50% of the Mortgage Loans measured by Principal Balance principal balance were secured by non-owner-occupied second home residences;
(pxvi) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(qxvii) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(rxviii) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(sxix) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(txx) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(xxi) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy;
(xxii) No Loan is a "high-cost home loan" as defined in the Georgia Fair Lending Act, as amended, or in the New York Predatory Lending Law, codified as N.Y. Banking Law ss. 6-l, N.Y. Gen. Bus. Law ss. 771-a, and N.Y. Real Prop. Acts Law ss. 1302; and
(xxiii) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). If the breach of representation and warranty that gave rise to the obligation to repurchase or substitute a Loan pursuant to this Section 8 was the representation set forth in clause (vi) of this Section 8, then the Seller shall pay to the Trust Fund, concurrently with and in addition to the remedies provided in the preceding sentence, an amount equal to any liability, penalty or reasonable expense that was actually incurred and paid out of or on behalf of the Trust Fund, and that directly resulted from such breach, or if incurred and paid by the Trust Fund thereafter, concurrently with such payment. Except as set forth in SECTION 13 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Muilti Cl Mort Ps THR CRTS Ser 2003-8)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing and in good standing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) The Seller has all requisite corporate power, authority and capacity to enter into this Agreement and to perform the obligations required of it hereunder. This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law. No consent, approval, authorization or order of or registration with, or notice to, any governmental authority or court is required, under state or federal law prior to the execution, delivery, performance of or compliance by the Seller with this Agreement or the consummation by the Seller with any other transaction contemplated hereby;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) With respect to each Mortgage Loan:
(a1) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b2) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the samesame and, upon the Seller's receipt of the Purchase Price, the Purchaser shall own and hold such Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature;
(c3) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d4) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e5) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f6) that each Mortgage Loan complies in with all material respects with applicable state or federal laws, regulations and other requirements, pertaining to including, but not limited to, usury, equal credit opportunity opportunity, truth-in-lending and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g7) to the best of the Seller's knowledge, all taxesinsurance premiums, water, sewer and municipal charges, leasehold payments and ground rents previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) 8) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i9) that each Mortgage is a valid and enforceable perfected first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j10) neither the Seller nor any prior holder of any Mortgage or Mortgage Note has, except as the Mortgage File may reflect, impaired, waived, altered or modified the Mortgage or Mortgage Note in any material respect; , except by a written instrument which has been recorded, if necessary to protect the interests of the Purchaser and which has been delivered to the Purchaser. The substance of any such waiver, alteration or modification has been approved by the issuer of any primary mortgage insurance policy covering the Mortgage Loan and title insurer, to the extent required by the policies, and its terms are reflected in the Mortgage Loan Schedule. No Mortgage has been satisfied, cancelled or subordinated such Mortgage in whole or in part; released such No Mortgaged Property has been released in whole or in part from the lien of the Mortgage; or executed any No instrument of release, cancellation, modification or satisfactionsatisfaction has been executed with respect to the Mortgage Loan;
(k11) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l12) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m13) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and and, to the best of the Seller's knowledge, no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n14) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o15) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100approximately 95.63% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied residences and no more than 0approximately 4.37% of the Mortgage Loans measured by Principal Balance principal balance were secured by non-owner-occupied second home residences;
(p16) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q17) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 9595.00%;
(r18) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s19) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note or Assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (ii) be accruing interest at a rate of interest at least equal to that of the defected Mortgage Loan, (iii) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.;
Appears in 1 contract
Samples: Whole Loan Purchase Agreement (Abn Amro Mortgage Corp Multi Cl Mort Ps THR Certs Ser 2003-6)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or or
constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied residences and no more than 0% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by non-owner-occupied residences;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(u) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note or Assignment assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION 13 Section 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION Section 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 2000-1)
Representations, Warranties and Agreements of Seller. (a) A. The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) i. The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) . The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) . This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) . The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) v. No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) . The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) . The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) . With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 10095.70% of the Group I Mortgage Loans and 92.567% of the Group II Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied primary residences and no more than 04.30% of the Group I Mortgage Loans and 7.433% of the Group II Mortgage Loans measured by Principal Balance principal balance were to be secured by non-owner-occupied residencessecond homes;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(u) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION 13 Section 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION Section 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abnn Amro Mortgage Corp Series 2002-1)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viiivii) With respect to each Mortgage Loan:
(a1) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b2) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the samesame and, upon the Seller's receipt of the Purchase Price, the Purchaser shall own and hold such Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature;
(c3) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d4) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e5) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f6) that each Mortgage Loan complies in with all material respects with applicable state or federal laws, regulations and other requirements, pertaining to including, but not limited to, usury, equal credit opportunity opportunity, truth-in-lending and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g7) to the best of the Seller's knowledge, all taxesinsurance premiums, water, sewer and municipal charges, leasehold payments and ground rents previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) 8) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i9) that each Mortgage is a valid and enforceable perfected first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j10) neither the Seller nor any prior holder of any Mortgage or Mortgage Note has, except as the Mortgage File may reflect, impaired, waived, altered or modified the Mortgage or Mortgage Note in any material respect; , except by a written instrument which has been recorded, if necessary to protect the interests of the Purchaser and which has been delivered to the Purchaser. The substance of any such waiver, alteration or modification has been approved by the issuer of any primary mortgage insurance policy covering the Mortgage Loan and title insurer, to the extent required by the policies, and its terms are reflected in the Mortgage Loan Schedule. No Mortgage has been satisfied, cancelled or subordinated such Mortgage in whole or in part; released such No Mortgaged Property has been released in whole or in part from the lien of the Mortgage; or executed any No instrument of release, cancellation, modification or satisfactionsatisfaction has been executed with respect to the Mortgage Loan;
(k11) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l12) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m13) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and and, to the best of the Seller's knowledge, no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n14) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o15) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100approximately 97.00% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied residences and no more than 0approximately 3.00% of the Mortgage Loans measured by Principal Balance principal balance were secured by non-owner-occupied second home residences;
(p16) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q17) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 9595.00%;
(r18) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s19) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t20) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss. It 1.860 G-2(f) of the REMIC provisions or any similar rule;
21) that no Mortgage Loan permits negative amortization or the deferral of accrued interest;
22) pursuant to the terms of the applicable Mortgage, all buildings or other improvements upon each Mortgaged Property are insured by an insurer acceptable to FNMA or FHLMC against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the Mortgaged Property is understood located pursuant to insurance policies conforming to the requirements of FNMA or FHLMC. If upon origination of any Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and agreed that such flood insurance has been made available) a flood insurance policy meeting the representations requirements of the current guidelines of the Federal Insurance Administration is in effect which policy conforms to the requirements of FNMA or FHLMC. All individual insurance policies contain a standard mortgagee clause naming the Seller and warranties set forth in this SECTION 8 shall survive its successors and assigns as mortgagee, and all premiums thereon have been paid. Each Mortgage obligates the sale Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage Loans to the Purchaser obtain and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note or Assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering maintain such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any insurance at such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (ii) be accruing interest at a rate of interest at least equal to that of the defected Mortgage Loan, (iii) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.Mortgagor's cost and
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mort Corp Multi Class Mort Pass THR Cert Ser 2003-4)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100% [100]% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-owner- occupied residences and no more than 0% [0]% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by non-owner-occupied residences;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to 'SS' 1.860 G-2(f) of the REMIC provisions or any similar rule;
(u) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note or Assignment assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (ii) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iii) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION 13 Section 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION Section 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 1999-8)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-owner- occupied residences and no more than 0% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by non-owner-occupied residences;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to 'SS'1.860 G-2(f) of the REMIC provisions or any similar rule;
(u) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION 13 Section 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION Section 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 2000-3)
Representations, Warranties and Agreements of Seller. (a) A. The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) 1. The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) 2. The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) 3. This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) 4. The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) 5. No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) 6. The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) 7. The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) 8. With respect to each Mortgage Loan:
(a1) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b2) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c3) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d4) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e5) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f6) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g7) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) 8) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i9) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j10) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k11) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l12) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m13) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n14) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o15) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 10095.10% of the Mortgage Group I Loans and 92.75% of the Group II Loans, measured by Principal Balance principal balance were to be secured by owner-occupied primary residences and no more than 04.90% of the Mortgage Group I Loans and 7.25% of the Group II Loans, measured by Principal Balance principal balance were to be secured by non-owner-occupied residencessecond homes;
(p16) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q17) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r18) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s19) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t20) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(21) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(22) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION 13 Section 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION Section 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 2001-5)
Representations, Warranties and Agreements of Seller. (a) A. The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) 1. The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) 2. The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws by_laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) 3. This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) 4. The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) 5. No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) 6. The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) 7. The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) 8. With respect to each Mortgage Loan:
(a1) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b2) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c3) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d4) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e5) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f6) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g7) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) 8) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i9) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j10) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k11) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l12) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m13) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n14) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o15) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 10096.57% of the Group I Mortgage Loans and 93.88% of the Group II Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied primary residences and no more than 03.43% of the Group I Mortgage Loans and 6.12% of the Group II Mortgage Loans measured by Principal Balance principal balance were to be secured by non-owner-occupied residencessecond homes;
(p16) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q17) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r18) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s19) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t20) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(21) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(22) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION 13 Section 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION Section 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 2001-6)
Representations, Warranties and Agreements of Seller. (a) A. The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) i. The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) . The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) . This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) . The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) v. No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) . The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) . The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) . With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 10094.61% of the Mortgage Group I Loans and 93.52% of the Group II Loans, measured by Principal Balance were to be secured by owner-occupied primary residences and no more than 05.39% of the Mortgage Group I Loans and 6.48% of the Group II Loans, measured by Principal Balance were to be secured by non-owner-occupied residencessecond homes;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard toss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(u) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION 13 Section 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION Section 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Mul Class Mor Pass THR Ce Ser 2002-10)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viiivii) With respect to each Mortgage Loan:
(a1) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b2) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the samesame and, upon the Seller's receipt of the Purchase Price, the Purchaser shall own and hold such Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature;
(c3) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d4) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e5) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f6) that each Mortgage Loan complies in with all material respects with applicable state or federal laws, regulations and other requirements, pertaining to including, but not limited to, usury, equal credit opportunity opportunity, truth-in-lending and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g7) to the best of the Seller's knowledge, all taxesinsurance premiums, water, sewer and municipal charges, leasehold payments and ground rents previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) 8) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i9) that each Mortgage is a valid and enforceable perfected first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j10) neither the Seller nor any prior holder of any Mortgage or Mortgage Note has, except as the Mortgage File may reflect, impaired, waived, altered or modified the Mortgage or Mortgage Note in any material respect; , except by a written instrument which has been recorded, if necessary to protect the interests of the Purchaser and which has been delivered to the Purchaser. The substance of any such waiver, alteration or modification has been approved by the issuer of any primary mortgage insurance policy covering the Mortgage Loan and title insurer, to the extent required by the policies, and its terms are reflected in the Mortgage Loan Schedule. No Mortgage has been satisfied, cancelled or subordinated such Mortgage in whole or in part; released such No Mortgaged Property has been released in whole or in part from the lien of the Mortgage; or executed any No instrument of release, cancellation, modification or satisfactionsatisfaction has been executed with respect to the Mortgage Loan;
(k11) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l12) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m13) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and and, to the best of the Seller's knowledge, no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n14) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o15) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100approximately 97% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied residences and no more than 0approximately 3% of the Mortgage Loans measured by Principal Balance principal balance were secured by non-owner-occupied second home residences;
(p16) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q17) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r18) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s19) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t20) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss. It 1.860 G-2(f) of the REMIC provisions or any similar rule;
21) that no Mortgage Loan permits negative amortization or the deferral of accrued interest;
22) pursuant to the terms of the applicable Mortgage, all buildings or other improvements upon each Mortgaged Property are insured by an insurer acceptable to FNMA or FHLMC against loss by fire, hazards of extended coverage and such other hazards as are customary in the area where the Mortgaged Property is understood located pursuant to insurance policies conforming to the requirements of FNMA or FHLMC. If upon origination of any Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and agreed that such flood insurance has been made available) a flood insurance policy meeting the representations requirements of the current guidelines of the Federal Insurance Administration is in effect which policy conforms to the requirements of FNMA or FHLMC. All individual insurance policies contain a standard mortgagee clause naming the Seller and warranties set forth in this SECTION 8 shall survive its successors and assigns as mortgagee, and all premiums thereon have been paid. Each Mortgage obligates the sale Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor's cost and expense, and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage Loans to obtain and maintain such insurance at such Mortgagor's cost and expense, and to seek reimbursement therefor from the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive Mortgagor. Where required by state law or qualified endorsement on any Mortgage Note or Assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Sellerregulation, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice Mortgagors have been given an opportunity to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (ii) be accruing interest at a rate of interest at least equal to that of the defected Mortgage Loan, (iii) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.choose the
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 2002-9)
Representations, Warranties and Agreements of Seller. (a) A. The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) i. The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) . The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) . This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) . The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) v. No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) . The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) . The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) . With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged PropertyMORTGAGED PROPERTY") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 10097.54% of the Mortgage Group I Loans and 95.88% of the Group II Loans, measured by Principal Balance were to be secured by owner-occupied primary residences and no more than 02.46% of the Mortgage Group I Loans and 4.12% of the Group II Loans, measured by Principal Balance were to be secured by non-owner-occupied residencessecond homes;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard toss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(u) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mort Corp Multi Class Mort Pas THR Certs Ser 2003-5)
Representations, Warranties and Agreements of Seller. (a) A. The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) i. The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) . The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) . This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) . The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) v. No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) . The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) . The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) . With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 10094.15% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied primary residences and no more than 05.35% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by non-owner-occupied residencessecond homes;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(u) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION 13 Section 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION Section 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 2002-2)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkIllinois;
(viiivii) With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100% all of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied residences and no more than 0% of the Mortgage Loans measured by Principal Balance secured by non-owner-occupied residences;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(u) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances)respects, (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION 13 Section 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto or Mortgage Loan purchased pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreementencumbrances, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION Section 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 2001-4)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the each [the] Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing as a New York Commercial Bank [corporation] under the laws of the state State of New York[ ];
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's corporate charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which the Seller default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkIllinois;
(viii) With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 [30] days or more past due from the Due Date of such Mortgage Loan;
(d) as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, pending or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, owing with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real propertyproperty or a share interest in a cooperative corporation in the case of a Co-op Loan;
(l) [no more than __% of the Mortgage Loans consist of [Mortgage Loans with [Limited Mortgage Documentation];]
(m) [no more than __% of the Mortgage Loans consist of [Buy- down Mortgage Loans;]
(n) [no more than __% of the Mortgage Loans consist of Mortgage Loans that accrue Deferred Interest;]
(o) the condominium projects that include the condominiums that are the subject of any condominium loan or Co-op Loan are generally acceptable to FNMA or FHLMC;
(mp) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 [__] days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller Depositor has not waived any default, breach, violation or event of acceleration;
(nq) Each each Mortgage Loan was which can be converted from an adjustable rate Mortgage Loan to a fixed rate Mortgage Loan gives the Mortgagor the right at one or more times during the term of such Mortgage Loan to elect to convert from one interest rate to another. In the event of a conversion, the new rate of interest is determined pursuant to the terms of the Mortgage Loan itself, which terms are intended to approximate a market rate of interest for newly originated on FNMA or FHLMC uniform instruments for mortgages at the state in which the mortgaged property is locatedtime of conversion;
(or) that each Mortgage Loan is in one of the forms contained in Exhibit __ and each provision of the Mortgage Note, including, without limitation, the interest rate and payment amount adjustments of the Mortgage Note, are in conformity with and are being serviced in conformity with Exhibit __;
(s) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100____% of the Mortgage Loans measured by Principal Balance were to be secured by a primary, owner-occupied residences residence and no more than 0____% of the Mortgage Loans measured by Principal Balance secured by non-non- owner-occupied residences;
(pt) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(qu) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95125%;
(rv) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(sw) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and
(tx) [each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986. .] It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note or Assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (ii) be accruing interest at a rate of interest at least equal to that of the defected Mortgage Loan, (iii) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.this
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing as a New York Commercial Federal Savings Bank under the laws of the state of New YorkUnited States;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100% of the Mortgage Loans measured by Principal Balance were to be secured by owner-occupied residences and no more than 0% of the Mortgage Loans measured by Principal Balance secured by non-owner-owner- occupied residences;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note or Assignment assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, ,
(ii) be accruing interest at a rate of interest at least equal to that of the defected Mortgage Loan, (iii) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-to- value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp)
Representations, Warranties and Agreements of Seller. (a) A. The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) i. The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) . The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(; iii) . This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) . The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) v. No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) . The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) . The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) . With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 10096.82% of the Mortgage Loans Loans, measured by Principal Balance were to be secured by owner-occupied primary residences and no more than 03.18% of the Mortgage Loans Loans, measured by Principal Balance were to be secured by non-owner-occupied residencessecond homes;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 9590.00%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(u) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION 13 Section 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION Section 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Mul Cl Mort Pass THR Cert Ser 2003-1)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing and in good standing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) The Seller has all requisite corporate power, authority and capacity to enter into this Agreement and to perform the obligations required of it hereunder. This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law. No consent, approval, authorization or order of or registration with, or notice to, any governmental authority or court is required, under state or federal law prior to the execution, delivery, performance of or compliance by the Seller with this Agreement or the consummation by the Seller with any other transaction contemplated hereby;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an subservicers servicing on behalf of the seller are approved conventional seller/servicer servicers for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) With respect to each Mortgage Loan:
(a1) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b2) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the samesame and, upon the Seller's receipt of the Purchase Price, the Purchaser shall own and hold such Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature;
(c3) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d4) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e5) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f6) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity opportunity, disclosure laws and disclosure all applicable anti-predatory laws, and each Mortgage Loan was not usurious at the time of origination;
(g7) to the best of the Seller's knowledge, all taxesinsurance premiums, water, sewer and municipal charges, leasehold payments and ground rents previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) 8) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i9) that each Mortgage is a valid and enforceable perfected first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j10) neither the Seller nor any prior holder of any Mortgage or Mortgage Note has, except as the Mortgage File may reflect, impaired, waived, altered or modified the Mortgage or Mortgage Note in any material respect; , except by a written instrument which has been recorded, if necessary to protect the interests of the Purchaser and which has been delivered to the Purchaser. The substance of any such waiver, alteration or modification has been approved by the issuer of any primary mortgage insurance policy covering the Mortgage Loan and title insurer, to the extent required by the policies, and its terms are reflected in the Mortgage Loan Schedule. No Mortgage has been satisfied, cancelled or subordinated such Mortgage in whole or in part; released such No Mortgaged Property has been released in whole or in part from the lien of the Mortgage; or executed any No instrument of release, cancellation, modification or satisfactionsatisfaction has been executed with respect to the Mortgage Loan;
(k11) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l12) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m13) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and and, to the best of the Seller's knowledge, no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n14) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o15) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100approximately 93.6% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied residences and no more than 0approximately 6.4% of the Mortgage Loans measured by Principal Balance principal balance were secured by non-owner-occupied second home residences;
(p16) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q17) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 9595.00%;
(r18) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s19) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t20) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale , without regard to Section 1.860 G-2(f) of the REMIC provisions or any similar rule;
21) that no Mortgage Loans Loan permits negative amortization or the deferral of accrued interest;
22) pursuant to the Purchaser terms of the applicable Mortgage, all buildings or other improvements upon each Mortgaged Property are insured by an insurer acceptable to FNMA or FHLMC against loss by fire, hazards of extended coverage and shall inure such other hazards as are customary in the area where the Mortgaged Property is located pursuant to insurance policies conforming to the benefit requirements of the Purchaser, notwithstanding any restrictive FNMA or qualified endorsement on any Mortgage Note or Assignment of Mortgage or the examination FHLMC. If upon origination of any Mortgage File. Upon discovery by either the SellerLoan, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach Mortgaged Property was in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (ii) be accruing interest at a rate of interest at least equal to that of the defected Mortgage Loan, (iii) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest area identified in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared Federal Register by the Seller at its expense Federal Emergency Management Agency as having special flood hazards (and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties flood insurance has been made in this SECTION 8 shall accrue as to any Mortgage Loan upon (iavailable) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.a
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Multi-Class Mortgage Pass-Through Cert Series 2003-12)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing and in good standing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) The Seller has all requisite corporate power, authority and capacity to enter into this Agreement and to perform the obligations required of it hereunder. This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law. No consent, approval, authorization or order of or registration with, or notice to, any governmental authority or court is required, under state or federal law prior to the execution, delivery, performance of or compliance by the Seller with this Agreement or the consummation by the Seller with any other transaction contemplated hereby;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) With respect to each Mortgage Loan:
(a1) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b2) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the samesame and, upon the Seller's receipt of the Purchase Price, the Purchaser shall own and hold such Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature;
(c3) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d4) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e5) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f6) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity opportunity, disclosure laws and disclosure all applicable anti-predatory laws, and each Mortgage Loan was not usurious at the time of origination;
(g7) to the best of the Seller's knowledge, all taxesinsurance premiums, water, sewer and municipal charges, leasehold payments and ground rents previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) 8) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i9) that each Mortgage is a valid and enforceable perfected first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j10) neither the Seller nor any prior holder of any Mortgage or Mortgage Note has, except as the Mortgage File may reflect, impaired, waived, altered or modified the Mortgage or Mortgage Note in any material respect; , except by a written instrument which has been recorded, if necessary to protect the interests of the Purchaser and which has been delivered to the Purchaser. The substance of any such waiver, alteration or modification has been approved by the issuer of any primary mortgage insurance policy covering the Mortgage Loan and title insurer, to the extent required by the policies, and its terms are reflected in the Mortgage Loan Schedule. No Mortgage has been satisfied, cancelled or subordinated such Mortgage in whole or in part; released such No Mortgaged Property has been released in whole or in part from the lien of the Mortgage; or executed any No instrument of release, cancellation, modification or satisfactionsatisfaction has been executed with respect to the Mortgage Loan;
(k11) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l12) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m13) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and and, to the best of the Seller's knowledge, no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n14) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o15) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100approximately 97.60% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied residences and no more than 0approximately 2.40% of the Mortgage Loans measured by Principal Balance principal balance were secured by non-owner-occupied second home residences;
(p16) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q17) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 9595.00%;
(r18) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s19) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note or Assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (ii) be accruing interest at a rate of interest at least equal to that of the defected Mortgage Loan, (iii) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.;
Appears in 1 contract
Samples: Whole Loan Purchase Agreement (Abn Amro Mortgage Multi-Class Mor Pas THR Cer Ser 2003-11)
Representations, Warranties and Agreements of Seller. (a) A. The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) i. The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) . The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) . This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) . The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) v. No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) . The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) . The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) . With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 10095.58% of the Mortgage Group I Loans and 94.26% of the Group II Loans, measured by Principal Balance were to be secured by owner-occupied primary residences and no more than 03.42% of the Mortgage Group I Loans and 5.74% of the Group II Loans, measured by Principal Balance were to be secured by non-owner-occupied residencessecond homes;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard toss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(u) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION 13 Section 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION Section 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Multi Class Cer Ser 2002-8)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing as a New York Commercial Federal Savings Bank under the laws of the state of New YorkUnited States;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100% of the Mortgage Loans measured by Principal Balance were to be secured by owner-occupied residences and no more than 0% of the Mortgage Loans measured by Principal Balance were to be secured by non-owner-occupied residences;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986;
(u) each Mortgage Loan that has a Loan-to-Value Ratio in excess of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note or Assignment assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (i) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (ii) be accruing interest at a rate of interest at least equal to that of the defected Mortgage Loan, (iii) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (iv) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (v) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION Section 13 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.File
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp)
Representations, Warranties and Agreements of Seller. (a) A. The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) i. The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) . The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) . This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) . The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) v. No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) . The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) . The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) . With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged PropertyMORTGAGED PROPERTY") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100_____% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied primary residences and no more than 0_____% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by non-owner-occupied residencessecond homes;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard toss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(u) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOAN"). Except as set forth in SECTION 13 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 2002-3)
Representations, Warranties and Agreements of Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) The Seller has been duly created and is validly existing as a New York Commercial Bank federal savings bank under the laws of the state of New YorkUnited States;
(ii) The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkJersey;
(viii) With respect to each Mortgage Loan:
(a1) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b2) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c3) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such payment, other than with respect to 2.2% of the Mortgage LoanLoans, as to which no payment of principal of or interest on or in respect of any Mortgage Loan is 60 days or more past due from the Due Date of such payment;
(d4) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e5) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f6) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g7) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) 8) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i9) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j10) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k11) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l12) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m13) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n14) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o15) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 10095.40% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied primary residences and no more than 04.60% of the Mortgage Loans measured by Principal Balance principal balance were to be secured by non-owner-occupied residencessecond homes;
(p16) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q17) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r18) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s19) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t20) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(21) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(22) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at par plus accrued interest up to the Purchase Price, as adjusted for the then current principal balance date of purchase or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION 13 Section 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION Section 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 2001-8)
Representations, Warranties and Agreements of Seller. (a) A. The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) i. The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) . The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) . This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) . The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) v. No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) . The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) . The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) . With respect to each Mortgage Loan:
(a) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 10093.36% and 93.10% of the Mortgage Loans Subgroup I and Subgroup II Loans, respectively, measured by Principal Balance were to be secured by owner-occupied primary residences and no more than 06.64% and 6.90% of the Mortgage Loans Subgroup I and Subgroup II Loans, respectively, measured by Principal Balance were to be secured by non-owner-occupied residencessecond homes;
(p) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to ss.1.860 G-2(f) of the REMIC provisions or any similar rule;
(u) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(v) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION 13 Section 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION Section 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mort Corp Multi-Class Mort Pass-THR Cert Ser 2003-2)
Representations, Warranties and Agreements of Seller. (a) A. The Seller hereby represents and warrants to the Purchaser as of the Closing Date (or such other date as is specified in the related representation or warranty) as follows:
(i) 1. The Seller has been duly created and is validly existing as a New York Commercial Bank corporation under the laws of the state State of New YorkDelaware;
(ii) 2. The execution and delivery of this Agreement by the Seller and its performance of and compliance with the terms of this Agreement will not violate the Seller's charter or by-laws or will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which the Seller is a party or by which the Seller or to which any of the property or assets of the Seller is subject;
(iii) 3. This Agreement, assuming due authorization, execution and delivery by the Purchaser, constitutes a valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting creditors' rights and to general equity principles, regardless of whether such enforcement is considered in a proceeding in equity or at law;
(iv) 4. The Seller is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or governmental agency, which default might have consequences that would materially and adversely affect the condition (financial or other) or operations of the Seller or its properties or might have consequences that would affect its performance hereunder;
(v) 5. No litigation is pending or, to the best of the Seller's knowledge, threatened against the Seller which would prohibit its entering into this Agreement or performing its obligations under this Agreement;
(vi) 6. The Seller is an approved conventional seller/servicer for FNMA or FHLMC in good standing;
(vii) 7. The consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Seller, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant to this Agreement is not subject to the bulk transfer or any similar statutory provisions in effect in the State of New YorkMichigan;
(viii) 8. With respect to each Mortgage Loan:
(a1) that the information set forth in the Mortgage Loan Schedule appearing as an exhibit to this Agreement is true and correct in all material respects at the date or dates respecting which such information is furnished as specified therein;
(b2) the Seller is the sole owner and holder of each Mortgage Loan free and clear of all liens, pledges, charges or security interests of any nature and has full right and authority, subject to no interest or participation of, or agreement with, any other party, to sell and assign the same;
(c3) no payment of principal of or interest on or in respect of any Mortgage Loan is 30 days or more past due from the Due Date of such Mortgage Loanpayment;
(d4) to the best of the Seller's knowledge, as of the date of the transfer of the Mortgage Loans to the Purchaser, there is no valid offset, defense or counterclaim to any Mortgage Note or Mortgage;
(e5) there is no proceeding pending, or to the best of the Seller's knowledge, threatened for the total or partial condemnation of any of the real property, together with any improvements thereto, securing the indebtedness of the Mortgagor under the related Mortgage Loan (the "Mortgaged Property") and the Mortgaged Property is free of material damage and is in good repair and neither the Mortgaged Property nor any improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning law or regulation;
(f6) that each Mortgage Loan complies in all material respects with applicable state or federal laws, regulations and other requirements, pertaining to usury, equal credit opportunity and disclosure laws, and each Mortgage Loan was not usurious at the time of origination;
(g7) to the best of the Seller's knowledge, all taxes, insurance premiums previously due and owing with respect to each Mortgaged Property have been paid and all taxes and governmental assessments and insurance premiums previously due and owing, and which may become a lien against the Mortgaged Property, with respect to the Mortgaged Property have been paid;
(h) 8) that each Mortgage Note and the related Mortgage are genuine and each is the legal, valid and binding obligation of the maker thereof, enforceable in accordance with its terms except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); all parties to the Mortgage Note and the Mortgage had legal capacity to execute the Mortgage Note and the Mortgage; and each Mortgage Note and Mortgage have been duly and properly executed by the Mortgagor;
(i9) that each Mortgage is a valid and enforceable first lien on the property securing the related Mortgage Note, and that each Mortgage Loan is covered by an ALTA mortgagee title insurance policy or other form of policy or insurance generally acceptable to FNMA or FHLMC, issued by, and is a valid and binding obligation of, a title insurer acceptable to FNMA or FHLMC insuring the originator, its successor and assigns, as to the lien of the Mortgage in the original principal amount of the Mortgage Loan subject only to (a) the lien of current real property taxes and assessments not yet due and payable, (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the Mortgaged Property is located or specifically referred to in the appraisal performed in connection with the origination of the related Mortgage Loan and (c) such other matters to which like properties are commonly subject which do not individually, or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage;
(j10) neither the Seller nor any prior holder of any Mortgage has, except as the Mortgage File may reflect, modified the Mortgage in any material respect; satisfied, cancelled or subordinated such Mortgage in whole or in part; released such Mortgaged Property in whole or in part from the lien of the Mortgage; or executed any instrument of release, cancellation, modification or satisfaction;
(k11) that each Mortgaged Property consists of a fee simple estate, a leasehold estate or condominium form of ownership in real property;
(l12) the condominium projects that include the condominiums that are the subject of any condominium loan are generally acceptable to FNMA or FHLMC;
(m13) no foreclosure action is threatened or has been commenced (except for the filing of any notice of default) with respect to the Mortgage Loan; and except for payment delinquencies not in excess of 30 days, to the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(n14) Each that each Mortgage Loan was originated on FNMA or FHLMC uniform instruments for the state in which the mortgaged property Mortgaged Property is located;
(o15) that based upon a representation by each Mortgagor at the time of origination or assumption of the applicable Mortgage Loan, 100Loan,92,692% of the Group I Mortgage Loans and 96.93% of the Group II Mortgage Loans measured by Principal Balance principal balance were to be secured by owner-occupied primary residences and no more than 03.037% of the Group I Mortgage Loans and 7.308% of the Group II Mortgage Loans measured by Principal Balance principal balance were to be secured by non-owner-occupied residencessecond homes;
(p16) that an appraisal of each Mortgaged Property was conducted at the time of origination of the related Mortgage Loan, and that each such appraisal was conducted in accordance with FNMA or FHLMC criteria, on FNMA or FHLMC forms and comparables on at least three properties were obtained;
(q17) that no Mortgage Loan had a Loan-to-Value Ratio at origination in excess of 95%;
(r18) the Mortgage Loans were not selected in a manner to adversely affect the interests of the Purchaser and the Seller knows of no conditions which reasonably would cause it to expect any Mortgage Loan to become delinquent or otherwise lose value;
(s19) each Mortgage Loan was either (A) originated directly by or closed in the name of either: (i) a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution which is supervised and examined by a federal or state authority or (ii) a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of the National Housing Act or (B) originated or underwritten by an entity employing underwriting standards consistent with the underwriting standards of an institution as described in subclause (a)(iA)(i) or (a)(iiA)(ii) above; and;
(t20) each Mortgage Loan is a "qualified mortgage" within the meaning of Section 860G of the Internal Revenue Code of 1986, without regard to 1.860 G-2(f) of the REMIC provisions or any similar rule;
(21) each Mortgage Loan that has a Loan-to-Value Ratio at origination in excess of 80% is covered by a primary mortgage insurance policy; and
(22) that no Mortgage Loan permits negative amortization or the deferral of accrued interest. It is understood and agreed that the representations and warranties set forth in this SECTION Section 8 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser, notwithstanding any restrictive or qualified endorsement on any Mortgage Note (or Assignment lost note affidavit and indemnity) or assignment of Mortgage or the examination of any Mortgage File. Upon discovery by either the Seller, the Purchaser or its designees of a breach of any of the foregoing representations or warranties of the Seller which materially and adversely affects (1) the value of any of the Mortgage Loans actually delivered or (2) the interests of the Purchaser therein, the party discovering such breach shall give prompt written notice to the other. Within 90 (ninety) days of its discovery or its receipt of notice of any such breach of a representation or warranty, the Seller shall, with respect to the Mortgage Loan(s) to which such breach relates, either (i) cure such breach in all material respects (except for a breach of that portion of the representation and warranty relating to any casualty from the presence of hazardous waste or hazardous substances), (ii) repurchase such Mortgage Loan or Mortgage Loans (or any property acquired in respect thereof) from the Purchaser at the Purchase Price, as adjusted for the then current principal balance or (iii) within the 90 (ninety)-day period following the Closing Date substitute another mortgage loan for such Mortgage Loan. Such substitute mortgage loan shall on the date of substitution, (ia) have a principal balance not in excess of the principal balance of the defective Mortgage Loan, (iib) be accruing interest at a rate of interest at least equal to that of the defected defective Mortgage Loan, (iiic) have a remaining term to stated maturity not greater than, and not more than two years less than, that of the Mortgage Loan so substituted, (ivd) have an original loan-to-value ratio not higher than that of the Mortgage Loan so substituted and a current loan-to-value ratio not higher than that of the Mortgage Loan so substituted, and (ve) comply with all the representations and warranties relating to Mortgage Loans set forth herein, as of the date of substitution (such mortgage loan being referred to herein as a "QUALIFYING SUBSTITUTE MORTGAGE LOANQualifying Substitute Mortgage Loan"). Except as set forth in SECTION 13 Section 12 hereof, it is understood and agreed that the obligations of the Seller set forth in this SECTION Section 8 to cure, substitute for or repurchase a defective Mortgage Loan constitute the sole remedies of the Purchaser respecting a breach of the foregoing representations and warranties. The Purchaser, upon receipt by it of the full amount of the Purchase Price as adjusted for the then current principal balance for a Mortgage Loan that is repurchased, or upon receipt of the Mortgage File for a Qualifying Substitute Mortgage Loan for a Mortgage Loan that is substituted or repurchased, shall release or cause to be released and reassign to the Seller the related Mortgage File for the Mortgage Loan that is substituted and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, representation, or warranty, as shall be necessary to vest in the Seller or its designee or assignee title to any such substituted Mortgage Loan released pursuant hereto, free and clear of all security interests, liens and other encumbrances created by this Agreement, which instruments shall be prepared by the Seller at its expense and shall be reasonably acceptable to the Purchaser, and the Purchaser shall have no further responsibility with respect to the Mortgage File relating to such Mortgage Loan that is substituted. Any cause of action against the Seller or relating to or arising out of the breach of any representations and warranties made in this SECTION Section 8 shall accrue as to any Mortgage Loan upon (i) discovery of such breach by the Purchaser or notice thereof by the Seller to the Purchaser, (ii) failure by the Seller to cure such breach, repurchase such Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan as specified above, and (iii) demand upon the Seller by the Purchaser for all amounts payable in respect of such Mortgage Loan.
Appears in 1 contract
Samples: Mortgage Loan Purchase Agreement (Abn Amro Mortgage Corp Series 2001-7)