SEQUOIA MORTGAGE TRUST 2007-4 MORTGAGE PASS-THROUGH CERTIFICATES MORTGAGE LOAN PURCHASE AND SALE AGREEMENT Between RWT HOLDINGS, INC. and SEQUOIA RESIDENTIAL FUNDING, INC. dated as of August 1, 2007
Exhibit
10.3
Execution
Version
MORTGAGE
PASS-THROUGH CERTIFICATES
Between
RWT
HOLDINGS, INC.
and
SEQUOIA
RESIDENTIAL FUNDING, INC.
dated
as
of August 1, 2007
TABLE
OF
CONTENTS
PAGE
Section
1.
|
Representations
and Warranties of RWT and Sequoia
|
1
|
Section
2.
|
Additional
Representations, Warranties and
|
|
Agreements
of RWT
|
1
|
|
Section
3.
|
Conveyance
of Mortgage Loans.
|
2
|
Section
4.
|
Intention
of Parties..
|
3
|
Section
5.
|
Termination
|
3
|
Section
6.
|
Miscellaneous
|
4
|
i
This
Mortgage Loan Purchase and Sale Agreement (the “Agreement”) is made as of August
1, 2007, by and between RWT Holdings, Inc., a Delaware corporation (“RWT”) and
Sequoia Residential Funding, Inc., a Delaware corporation
(“Sequoia”).
WHEREAS,
the parties hereto desire to provide for the purchase and sale of the Mortgage
Loans (the "Mortgage Loans") on the Closing Date (as defined in the Pooling
and
Servicing Agreement, dated as of August 1, 2007 (the “Pooling and Servicing
Agreement”) by and among Sequoia, as depositor, HSBC Bank USA, National
Association, as trustee (the “Trustee”), and Xxxxx Fargo Bank, N. A., as master
servicer and securities administrator, and acknowledged by RWT, as seller,
in
accordance with the terms and conditions set forth in this
Agreement.
NOW,
THEREFORE, the parties in consideration of good and valuable consideration,
the
receipt and sufficiency of which is hereby acknowledged, and intending to
be
legally bound, hereby agree as follows:
Section
1. Representations
and Warranties of RWT and Sequoia.
RWT and
Sequoia, each as to itself and not the other, hereby represents, warrants
and
agrees for the benefit of the other party that:
(a) Authorization.
The
execution, delivery and performance of this Agreement by it are within its
respective powers and have been duly authorized by all necessary action on
its
part.
(b) No
Conflict.
The
execution, delivery and performance of this Agreement will not violate or
conflict with (i) its charter or bylaws, (ii) any resolution or other corporate
action by it, or (iii) any decisions, statutes, ordinances, rulings, directions,
rules, regulations, orders, writs, decrees, injunctions, permits, certificates
or other requirements of any court or other governmental or public authority
in
any way applicable to or binding upon it, and will not result in or require
the
creation, except as provided in or contemplated by this Agreement, of any
lien,
mortgage, pledge, security interest, charge or encumbrance of any kind upon
the
Mortgage Loans.
(c) Binding
Obligation.
This
Agreement has been duly executed by it and is its legally valid and binding
obligation, enforceable against it in accordance with this Agreement’s terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights
generally, and by general principles of equity.
Section
2. Additional
Representations, Warranties and Agreements
of RWT.
(a) RWT
represents and warrants to, and agrees with, Sequoia that (i) on the Closing
Date, RWT will have good, valid and marketable title to the Mortgage Loans
that
are identified in Schedule A to the Pooling and Servicing Agreement and the
contractual rights with respect to the Mortgage Loans under each of the Purchase
Agreements and the Servicing Agreements, (as modified by the related
Acknowledgements, collectively referred to herein as the "Purchase and Servicing
Agreements"), in each case free and clear of all liens, mortgages, deeds
of
trust, pledges, security interests, charges, encumbrances or other claims;
and
(ii) upon transfer to Sequoia, Sequoia will receive good, valid and marketable
title to all of the Mortgage Loans and will receive all of RWT’s contractual
rights and obligations under each such Purchase and Servicing Agreements,
in
each case free and clear of any liens, mortgages, deeds of trust, pledges,
security interests, charges, encumbrances or other claims.
(b) RWT
hereby makes the representations and warranties as to the Mortgage Loans
set
forth in Schedule A to this Agreement, for the benefit of Sequoia and the
Trustee.
(c) RWT
hereby agrees that it will comply with the provisions of Section 2.04 of
the
Pooling and Servicing Agreement in respect of a breach of any of the
representations and warranties set forth in this Section 2. In addition,
RWT
will comply with the provisions of Sections 7.01(b) and 9.01(d) of the Pooling
and Servicing Agreement.
(d) RWT
hereby represents and warrants for the benefit of Sequoia and the Trustee:
(i)
this Agreement creates a valid and continuing security interest (as defined
in
the applicable UCC) in the Mortgage Loans in favor of Sequoia, which security
interest is prior to all other Liens, and is enforceable as such as against
creditors of and purchasers from RWT; (ii) the Mortgage Loans constitute
“instruments” within the meaning of the applicable UCC; (iii) RWT, immediately
prior to its transfer of Mortgage Loans under this Agreement, will own and
have
good, valid and marketable title to the Mortgage Loans free and clear of
any
Lien, claim or encumbrance of any Person; (iv) RWT has received all consents
and
approvals required by the terms of the Mortgage Loans to the sale of the
Mortgage Loans hereunder to Sequoia; (v) all original executed copies of
each
Mortgage Note that constitute or evidence the Mortgage Loans have been delivered
to the applicable Custodian; (vi) RWT has received a written acknowledgment
from
the applicable Custodian that such Custodian is holding the Mortgage Notes
that
constitute or evidence the Mortgage Loans solely on behalf and for the benefit
of Sequoia; (vii) other than the security interest granted to Sequoia pursuant
to this Agreement and security interests granted to lenders which will be
automatically released at the Closing, RWT has not pledged, assigned, sold,
granted a security interest in, or otherwise conveyed any of the Mortgage
Loans;
RWT has not authorized the filing of and is not aware of any financing
statements against it that include a description of collateral covering the
Mortgage Loans other than any financing statement relating to the security
interest granted to Sequoia hereunder or that will be automatically released
upon the sales to Sequoia; (viii) RWT is not aware of any judgment or tax
lien
filing against itself; and (ix) none of the Mortgage Notes that constitute
or
evidence the Mortgage Loans have any marks or notations indicating that they
have been pledged, assigned or otherwise conveyed to any Person other than
Sequoia.
Section
3. Conveyance
of Mortgage Loans.
(a) Mortgage
Loans.
RWT,
concurrently with the execution and delivery hereof, hereby sells, transfers,
assigns, sets over and otherwise conveys to Sequoia, without recourse, all
of
RWT’s right, title and interest in and to (i) the Mortgage Loans, including the
related Mortgage Documents and all interest and principal received or receivable
by RWT on or with respect to the Mortgage Loans after the Cut-off Date and
all
interest and principal payments on the Mortgage Loans received prior to the
Cut-off Date in respect of installments of interest and principal due
thereafter, but not including payments of interest and principal due and
payable
on the Mortgage Loans on or before the Cut-off Date, and all other proceeds
received in respect of such Mortgage Loans, (ii) RWT’s rights and obligations
under the Purchase Agreements and the Servicing Agreements with respect to
the
Mortgage Loans, as modified by the related Acknowledgements, (iii) the pledge,
control and guaranty agreements and the Limited Purpose Surety Bond relating
to
the Additional Collateral Mortgage Loans, (iv) the Insurance Policies with
respect to the Mortgage Loans, (v) all cash, instruments or other property
held
or required to be deposited in the Collection Accounts and the Distribution
Account, and (vi) all proceeds of the conversion, voluntary or involuntary,
of
any of the foregoing into cash or other liquid assets, including, without
limitation, all Insurance Proceeds, Liquidation Proceeds and condemnation
awards.
2
On
or
prior to the Closing Date, RWT shall deliver to Sequoia or, at Sequoia’s
direction, to the applicable Custodian, the Trustee’s Mortgage File for each
Mortgage Loan in the manner set forth in Section 2 of the Custody Agreement.
Release of the Trustee’s Mortgage Files on the Closing Date shall be made
against payment by Sequoia of the purchase price for the Mortgage Loans and
related assets, which shall be a combination of credit for an additional
capital
contribution and cash wired to RWT's account. The amount of the purchase
price
payable by Sequoia shall be set forth in writing in a separate
letter.
(b) Defective
Mortgage Loans.
If any
Mortgage Loan is required to be repurchased due to defective or missing
documentation pursuant to Section 2.04 of the Pooling and Servicing Agreement,
RWT shall, at its option, either (a) repurchase or cause the applicable seller
of such Mortgage Loan to RWT to repurchase such Mortgage Loan at the Purchase
Price, or (b) provide or cause the applicable seller of such Mortgage Loan
to
RWT to provide a Replacement Mortgage Loan, subject to the terms and conditions
of the Pooling and Servicing Agreement.
Section
4. Intention
of Parties.
It is
the express intent of the parties hereto that (without addressing
characterization for GAAP purposes) the conveyance of the Mortgage Loans
by RWT
to Sequoia be construed as, an absolute sale thereof. It is, further, not
the
intention of the parties that such conveyance be deemed a pledge thereof.
However, in the event that, notwithstanding the intent of the parties, such
assets are held to be the property of the assigning party, or if for any
other
reason this Agreement is held or deemed to create a security interest in
the
Mortgage Loans, then (i) this Agreement shall be deemed to be a security
agreement within the meaning of the Uniform Commercial Code of the State
of New
York and (ii) the conveyance provided for in this Agreement shall be deemed
to
be an assignment and a grant by RWT to Sequoia of a security interest in
all of
the assets described in such conveyances, whether now owned or hereafter
acquired.
RWT
and
Sequoia shall, to the extent consistent with this Agreement, take such actions
as may be necessary to ensure that, if this Agreement were deemed to create
a
security interest in the Mortgage Loans, such security interest would be
deemed
to be a perfected security interest of first priority under applicable law
and
will be maintained as such throughout the term of this Agreement. RWT shall
arrange for filing any Uniform Commercial Code continuation statements in
connection with any security interest granted or assigned
hereunder.
Section
5. Termination.
(a) Sequoia
may terminate this Agreement, by notice to RWT, at any time at or prior to
the
Closing Date:
(i) if
the
Underwriting Agreement is terminated by the Underwriters pursuant to the
terms
of the Underwriting Agreement or if the Underwriters do not complete the
transactions contemplated
by the
Underwriting Agreement as the result of the failure of any condition set
forth
therein or if there has been, since the time of execution of this Agreement
or
since the respective dates as of which information is given in the Prospectus
or
Prospectus Supplement, any material adverse change in the financial condition,
earnings, business affairs or business prospects of RWT, whether or not arising
in the ordinary course of business, or
3
(ii) if
there
has occurred any material adverse change in the financial markets in the
United
States, any outbreak of hostilities or escalation thereof or other calamity
or
crisis or any change or development involving a prospective change in national
or international political,
financial or economic conditions, in each case the effect of which is such
as to
make it, in the judgment of the Underwriters, impracticable to market the
Certificates or to enforce contracts for the sale of the Certificates,
or
(iii) if
a
banking moratorium has been declared by either Federal or New York
authorities.
(b) This
Agreement shall terminate automatically without any required notice or other
action by any party hereto if the Closing Date for the issuance of the
Certificates has not occurred by September 15, 2007.
(c) Notwithstanding
any termination of this Agreement or the completion of all sales contemplated
hereby, the representations, warranties and agreements in Sections 1 and
2
hereof shall survive and remain in full force and effect.
Section
6. Miscellaneous.
(a) Amendments,
Etc.
No
rescission, modification, amendment, supplement or change of this Agreement
shall be valid or effective unless in writing and signed by all of the parties
to this Agreement. No amendment of this Agreement may modify or waive the
representations, warranties and agreements set forth in Sections 1 and 2
hereof.
(b) Binding
Upon Successors, Etc.
This
Agreement shall bind and inure to the benefit of and be enforceable by RWT
and
Sequoia, and the respective successors and assigns thereof. The parties hereto
acknowledge that Sequoia is acquiring the Mortgage Loans for the purpose
of
pledging, transferring, assigning, setting over and otherwise conveying them
to
the Trustee, pursuant to the Pooling and Servicing Agreement for inclusion
in
the Trust Fund. As an inducement to Sequoia to purchase the Mortgage Loans,
RWT
acknowledges and consents to the assignment to the Trustee by Sequoia of
all of
Sequoia's rights against RWT hereunder in respect of the Mortgage Loans sold
to
Sequoia and that the enforcement or exercise of any right or remedy against
RWT
hereunder by the Trustee or to the extent permitted under the Pooling and
Servicing Agreement shall have the same force and effect as if enforced and
exercised by Sequoia directly.
(c) Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original but all of which together shall constitute one and the
same
instrument.
(d) Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York.
4
(e) Headings.
The
headings of the several parts of this Agreement are inserted for convenience
of
reference and are not intended to be a part of or affect the meaning or
interpretation of this Agreement.
(f) Definitions.
Capitalized terms not otherwise defined herein have the meanings ascribed
to
such terms in the Pooling and Servicing Agreement.
(g) Nonpetition
Covenant.
Until
one year plus one day shall have elapsed since the termination of the Pooling
and Servicing Agreement in accordance with its terms, neither RWT nor any
assignee of RWT shall petition or otherwise invoke the process of any court
or
government authority for the purpose of commencing or sustaining a case against
Sequoia under any federal or state bankruptcy, insolvency or similar law
or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
or
other similar official of Sequoia or any substantial part of its property,
or
ordering the winding up or liquidation of the affairs of Sequoia.
[remainder
of page intentionally left blank]
5
IN
WITNESS WHEREOF, each party has caused this Mortgage Loan Purchase and Sale
Agreement to be executed by its duly authorized officer or officers as of
the
day and year first above written.
RWT
HOLDINGS, INC.
By:
________________________________
Name:
______________________________
Title:_______________________________
SEQUOIA
RESIDENTIAL FUNDING, INC.
By:
________________________________
Name:
______________________________
Title:_______________________________
6
SCHEDULE
A
I.
|
With
respect to Mortgage Loans purchased under the Mortgage Loan Flow
Purchase,
Sale and Servicing Agreement, dated as of February 1, 2002, between
Redwood Trust and GreenPoint Mortgage Funding, Inc. (the "Seller")
(the
"GreenPoint Agreement")
|
With
respect to each Mortgage Loan, RWT Holdings hereby makes the following
representations and warranties. Such representations and warranties speak
as of
the Closing Date with respect to Pledged Mortgages (as such capitalized
terms
are defined in the Pooling and Servicing Agreement), unless otherwise indicated.
Capitalized terms are as defined in this Schedule A or in the GreenPoint
Agreement.
(i) The
information set forth in the Mortgage Loan Schedule is true, complete and
correct in all material respects as of the Cut-Off Date and
the
information provided to the rating agencies, including the loan level detail,
is
true and correct according to the rating agency requirements;
(ii) The
Mortgage creates a first lien or a first priority ownership interest in
an
estate in fee simple in real property securing the related Mortgage Note,
free
and clear of all adverse claims, liens and encumbrances having priority
over the
first lien of the Mortgage subject only to (1) the lien of non-delinquent
current real property taxes and assessments not yet due and payable, (2)
covenants, conditions and restrictions, rights of way, easements and other
matters of public record as of the date of recording which are acceptable
to
mortgage lending institutions generally and, with respect to any Mortgage
Loan
for which an appraisal was made prior to the Cut-Off Date, either (A) which
are
referred to or otherwise considered in the appraisal made for the originator
of
the Mortgage Loan, or (B) which do not adversely affect the appraised value
of
the Mortgaged Property as set forth in such appraisal, and (C) other matters
to
which like properties are commonly subject which do not materially interfere
with the benefits of the security intended to be provided by the Mortgage
or the
use, enjoyment, value or marketability of the related Mortgaged Property.
Any
security agreement, chattel mortgage or equivalent document related to
and
delivered in connection with the Mortgage Loan establishes and creates
a valid,
subsisting and enforceable first lien and first priority security interest
on
the property described therein;
(iii) The
Mortgage Loan has not been delinquent thirty (30) days or more at any time
during the twelve (12) month period prior to the Cut-off Date for such
Mortgage
Loan. To RWT Holdings' knowledge, there are no defaults under the terms
of the
Mortgage Loan; and the Seller has not advanced funds, or induced, solicited
or
knowingly received any advance of funds from a party other than the owner
of the
Mortgaged Property subject to the Mortgage, directly or indirectly, for
the
payment of any amount required by the Mortgage Loan;
(iv) To
RWT
Holdings' knowledge, there are no delinquent taxes which are due and payable,
ground rents, assessments or other outstanding charges affecting the related
Mortgaged Property;
(v) The
terms
of the Mortgage Note of the related Mortgagor and the Mortgage have not
been
impaired, waived, altered or modified in any respect, except by written
instruments which have been recorded to the extent any such recordation
is
required by applicable law or is necessary to protect the interests of
the
Purchaser, and which have been approved by the title insurer and the primary
mortgage insurer, as applicable, and copies of which written instruments
are
included in the Mortgage File. No other instrument of waiver, alteration
or
modification has been executed, and no Mortgagor has been released, in
whole or
in part, from the terms thereof except in connection with an assumption
agreement, which assumption agreement is part of the Mortgage File and
the terms
of which are reflected on the Mortgage Loan Schedule;
(vi) The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, nor will
the
operation of any of the terms of the Mortgage Note and the Mortgage, or
the
exercise of any right thereunder, render the Mortgage Note or Mortgage
unenforceable, in whole or in part, or subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, and,
to RWT
Holdings' knowledge, no such right of rescission, set-off, counterclaim
or
defense has been asserted with respect thereto;
(vii) All
buildings upon the Mortgaged Property are insured by a generally acceptable
insurer pursuant to standard hazard policies conforming to the requirements
of
Xxxxxx Xxx and Xxxxxxx Mac. All such standard hazard policies are in effect
and
on the date of origination contained a standard mortgagee clause naming
the
Seller and its successors in interest as loss payee and such clause is
still in
effect and, to RWT Holdings' knowledge, all premiums due thereon have been
paid.
If the Mortgaged Property is located in an area identified by the Federal
Emergency Management Agency as having special flood hazards under the Flood
Disaster Protection Act of 1973, as amended, such Mortgaged Property is
covered
by flood insurance by a generally acceptable insurer in an amount not less
than
the requirements of Xxxxxx Mae and Xxxxxxx Mac. The Mortgage obligates
the
Mortgagor thereunder to maintain all such insurance at the Mortgagor's
cost and
expense, and on the Mortgagor's failure to do so, authorizes the holder
of the
Mortgage to maintain such insurance at the Mortgagor's cost and expense
and to
seek reimbursement therefor from the Mortgagor;
(viii) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures,
consumer
credit protection, equal credit opportunity or disclosure laws applicable
to the
Mortgage Loan have been complied with in all material respects;
(ix) The
Mortgage has not been satisfied, canceled or subordinated, in whole or
in part,
or rescinded, and the Mortgaged Property has not been released from the
lien of
the Mortgage, in whole or in part nor has any instrument been executed
that
would effect any such satisfaction, release, cancellation, subordination
or
rescission;
(x) The
Mortgage Note and the related Mortgage are original and genuine and each
is the
legal, valid and binding obligation of the maker thereof, enforceable in
all
respects in accordance with its terms subject to bankruptcy, insolvency
and
other laws of general application affecting the rights of creditors, and
the
Seller has taken all action necessary to transfer such rights of enforceability
to the Purchaser. All parties to the Mortgage Note and the Mortgage had
the
legal capacity to enter into the Mortgage Loan and to execute and deliver
the
Mortgage Note and the Mortgage. The Mortgage Note and the Mortgage have
been
duly and properly executed by such parties. The proceeds of the Mortgage
Note
have been fully disbursed and there is no requirement for future advances
thereunder, and any and all requirements as to completion of any on-site
or
off-site improvements and as to disbursements of any escrow funds therefor
have
been complied with;
(xi) Immediately
prior to the transfer and assignment to the Purchaser, the Mortgage Note
and the
Mortgage were not subject to an assignment or pledge, and the Seller had
good
and marketable title to and was the sole owner thereof and had full right
to
transfer and sell the Mortgage Loan to the Purchaser free and clear of
any
encumbrance, equity, lien, pledge, charge, claim or security
interest;
(xii) The
Mortgage Loan is covered by an ALTA lender's title insurance policy or
other
generally acceptable form of policy of insurance, with all necessary
endorsements, issued by a title insurer qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring (subject
to the
exceptions contained in clause (b) (1), (2) and (3) above) the Seller,
its
successors and assigns, as to the first priority lien of the Mortgage in
the
original principal amount of the Mortgage Loan. Such title insurance policy
affirmatively insures ingress and egress and against encroachments by or
upon
the Mortgaged Property or any interest therein. The Seller is the sole
insured
of such lender's title insurance policy, such title insurance policy has
been
duly and validly endorsed to the Purchaser or the assignment to the Purchaser
of
the Seller's interest therein does not require the consent of or notification
to
the insurer and such lender's title insurance policy is in full force and
effect
and will be in full force and effect upon the consummation of the transactions
contemplated by the GreenPoint Agreement. To RWT Holdings' knowledge, no
claims
have been made under such lender's title insurance policy, and no prior
holder
of the related Mortgage has done, by act or omission, anything which would
impair the coverage of such lender's title insurance policy;
(xiii) There
is
no default, breach, violation or event of acceleration existing under the
Mortgage or the related Mortgage Note and, to RWT Holdings' 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
permitting acceleration; and neither the Seller nor any prior mortgagee
has
waived any default, breach, violation or event permitting
acceleration;
(xiv) To
the
best of RWT Holdings' knowledge, there are no mechanics, or similar liens
or
claims which have been filed for work, labor or material affecting the
related
Mortgaged Property which are or may be liens prior to or equal to the lien
of
the related Mortgage;
(xv) To
RWT
Holdings' knowledge, all improvements subject to the Mortgage lie wholly
within
the boundaries and building restriction lines of the Mortgaged Property
(and
wholly within the project with respect to a condominium unit) and no
improvements on adjoining properties encroach upon the Mortgaged Property
except
those which are insured against by the title insurance policy referred
to in
clause (xii) above and all improvements on the property comply with all
applicable zoning and subdivision laws and ordinances;
(xvi) The
Mortgage Loan was originated by the Seller or by an eligible correspondent
of
the Seller. The Mortgage Loan complies in all material respects with all
the
terms, conditions and requirements of the Seller's underwriting standards
attached to the GreenPoint Agreement as Exhibit G. The Mortgage Notes and
Mortgages are on forms acceptable to Xxxxxx Xxx or Xxxxxxx Mac;
(xvii) The
Mortgage Loan contains the usual and enforceable provisions of the originator
at
the time of origination for the acceleration of the payment of the unpaid
principal amount if the related Mortgaged Property is sold without the
prior
consent of the mortgagee thereunder. The Mortgage Loan has an original
term to
maturity of not more than 30 years, with interest payable in arrears on
the
first day of each month. Except as otherwise set forth on the Mortgage
Loan
Schedule, the Mortgage Loan does not contain terms or provisions which
would
result in negative amortization nor contain “graduated payment”
features;
(xviii) The
Mortgaged Property at origination of the Mortgage Loan was and, to RWT
Holdings'
knowledge, currently is free of damage and waste and at origination of
the
Mortgage Loan there was, and, to RWT Holdings' knowledge, there currently
is, no
proceeding pending for the total or partial condemnation thereof;
(xix) The
related Mortgage contains enforceable provisions such as to render the
rights
and remedies of the holder thereof adequate for the realization against
the
Mortgaged Property of the benefits of the security provided thereby, including,
(1) in the case of a Mortgage designated as a deed of trust, by trustee's
sale,
and (2) otherwise by judicial foreclosure;
(xx) If
the
Mortgage constitutes a deed of trust, a trustee, duly qualified if required
under applicable law to act as such, has been properly designated and currently
so serves and is named in the Mortgage, and no fees or expenses are or
will
become payable by the Purchaser to the trustee under the deed of trust,
except
in connection with a trustees sale or attempted sale after default by the
Mortgagor;
(xxi) If
required by the applicable processing style, the Mortgage File contains
an
appraisal of the related Mortgaged Property made and signed prior to the
final
approval of the mortgage loan application by a qualified appraiser satisfying
the requirements of Title XI of The Financial Institutions Reform, and
Enforcement Act of 1989, as amended, and the regulations promulgated thereunder,
that is acceptable to Xxxxxx Mae or Xxxxxxx Mac and approved by the Seller.
The
appraisal, if applicable, is in a form generally acceptable to Xxxxxx Mae
or
Xxxxxxx Mac;
(xxii) All
parties which have had any interest in the Mortgage, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) (A) in substantial compliance with
any and
all applicable licensing requirements of the laws of the state wherein
the
Mortgaged Property is located, and (B) (1) organized under the laws of
such
state, or (2) qualified to do business in such state, or (3) federal savings
and
loan associations, national banks, a Federal Home Loan Bank or the Federal
Reserve Bank, or (4) not doing business in such state;
(xxiii) To
the
best of RWT Holdings' knowledge, there does not exist any circumstances
or
conditions with respect to the Mortgage, the Mortgaged Property, the Mortgagor
or the Mortgagor's credit standing that could reasonably be expected to
cause
private institutional investors to regard the Mortgage Loan as an unacceptable
investment, to cause the Mortgage Loan to become delinquent, or to materially
adversely affect the value or marketability of the Mortgage Loan;
(xxiv) Each
of
the Mortgaged Properties consists of a single parcel of real property with
a
detached single-family residence erected thereon, or a two- to four-family
dwelling, or a townhouse, or an individual condominium unit in a condominium
project or an individual unit in a planned unit development. Any condominium
unit or planned unit development either conforms with applicable Xxxxxx
Mae or
Xxxxxxx Mac requirements regarding such dwellings or is covered by a waiver
confirming that such condominium unit or planned unit development is acceptable
to Xxxxxx Mae or Xxxxxxx Mac or is otherwise “warrantable” with respect thereto.
No such residence is a mobile home or manufactured dwelling;
(xxv) The
ratio
of the original outstanding principal amount of the Mortgage Loan to the
lesser
of the appraised value (or stated value if an appraisal was not a requirement
of
the applicable processing style) of the Mortgaged Property at origination
or the
purchase price of the Mortgaged Property securing each Mortgage Loan (the
“Loan-to-Value Ratio”) is not in excess of 95.00%. The original Loan-to-Value
Ratio of each Mortgage Loan either was not more than 95.00% or the excess
over
80.00% is insured as to payment defaults by a Primary Mortgage Insurance
Policy
issued by a primary mortgage insurer acceptable to Xxxxxx Mae or Xxxxxxx
Mac;
(xxvi) The
Seller is either, and each Mortgage Loan was originated by, a savings and
loan
association, savings bank, commercial bank, credit union, insurance company
or
similar institution which is supervised and examined by a federal or State
authority, or by a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Section 203 and 211 of the National Housing
Act;
(xxvii) The
origination, collection and servicing practices with respect to each Mortgage
Note and Mortgage have been legal in all material respects. With respect
to
escrow deposits and payments that the Seller collects, all such payments
are in
the possession of, or under the control of, the Seller, and there exist
no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. No escrow deposits or other charges
or
payments due under the Mortgage Note have been capitalized under any Mortgage
or
the related Mortgage Note;
(xxviii)
No fraud or misrepresentation of a material fact with respect to the origination
of a Mortgage Loan has taken place on the part of the Seller;
(xxix)
No
Mortgage Loan contains a provision whereby the related Mortgagor can convert
the
related Mortgage Loan to a fixed rate instrument;
(xxx)
No
Mortgage Loan is subject to the provisions of the Homeownership and Equity
Protection Act of 1994 (“HOEPA”) and no Mortgage Loan is “high cost” as defined
by any applicable federal, state or local predatory or abusive lending
law, and
no mortgage loan is a “high cost” or “covered” mortgage loan, as applicable (as
such terms are defined in the then current Standard and Poor’s LEVELS Glossary
which is now Version 6.0, Appendix E);
(xxxi)
None
of the proceeds of any Mortgage Loan were used to finance the purchase
of single
premium credit insurance policies;
(xxxii) No
Mortgage Loan contains prepayment penalties that extend beyond five years
after
the date of origination;
(xxxiii)
Each Mortgage Loan would be a “qualified mortgage” within the meaning of Section
860G(a)(3)(A) of the Code and Treasury Regulations Section 1.860G-2(a)(1)
if
transferred to a REMIC on its startup date in exchange for the regular
or
residual interests of the REMIC;
(xxxiv) There
were no adverse selection procedures used in selecting the Mortgage Loan
from
among the residential mortgage loans which were available for inclusion
in the
Mortgage Loans; and
(xxxv) Each
Mortgage Loan at the time it was made complied in all material respects
with
applicable local, state and federal laws, including, but not limited to,
all
applicable predatory or abusive lending laws.
II.
|
With
respect to Mortgage Loans purchased under the Mortgage Loan Flow
Purchase,
Sale and Servicing Agreement, dated as of August 1, 2002, between
RWT
Holdings and GreenPoint Mortgage Funding, Inc. (the "Seller")
(the
"GreenPoint-RWT
Agreement")
|
With
respect to each Mortgage Loan, RWT Holdings hereby makes the following
representations and warranties. Such representations and warranties speak
as of
the Closing Date with respect to the Mortgage Loans (as such capitalized
terms
are defined in the Pooling and Servicing Agreement), unless otherwise indicated.
Capitalized terms are as defined in this Schedule A or in the GreenPoint-RWT
Agreement.
(i) The
information set forth in the Mortgage Loan Schedule is true, complete and
correct in all material respects as of the Cut-Off Date;
(ii) The
information provided to the rating agencies, including the loan level detail,
is
true and correct according to the rating agency requirements;
(iii) The
Mortgage creates a first lien on or a first priority ownership interest
in real
property securing the related Mortgage Note, free and clear of all adverse
claims, liens and encumbrances having priority over the first lien of the
Mortgage subject only to (1) the lien of non-delinquent current real property
taxes and assessments not yet due and payable, (2) covenants, conditions
and
restrictions, rights of way, easements and other matters of public record
as of
the date of recording which are acceptable to mortgage lending institutions
generally and, with respect to any Mortgage Loan for which an appraisal
was made
prior to the Cut-Off Date, either (A) which are referred to or otherwise
considered in the appraisal made for the originator of the Mortgage Loan,
or (B)
which do not adversely affect the appraised value of the Mortgaged Property
as
set forth in such appraisal, and (C) other matters to which like properties
are
commonly subject which do not materially interfere with the benefits of
the
security intended to be provided by the Mortgage or the use, enjoyment,
value or
marketability of the related Mortgaged Property. If the Mortgaged Property
includes a leasehold estate, the lease is valid, in full force and affect,
and
conforms to the Xxxxxx Xxx requirements for leasehold estates. Any security
agreement, chattel mortgage or equivalent document related to and delivered
in
connection with the Mortgage Loan establishes and creates a valid, subsisting
and enforceable first lien and first priority security interest on the
property
described therein;
(iv) The
Mortgage Loan has not been delinquent thirty (30) days or more at any time
during the twelve (12) month period prior to the Cut-off Date for such
Mortgage
Loan. To RWT Holdings' knowledge, there are no defaults under the terms
of the
Mortgage Loan; and the Seller has not advanced funds, or induced, solicited
or
knowingly received any advance of funds from a party other than the owner
of the
Mortgaged Property subject to the Mortgage, directly or indirectly, for
the
payment of any amount required by the Mortgage Loan;
(v) To
RWT
Holdings' knowledge, there are no delinquent taxes which are due and payable,
ground rents, assessments or other outstanding charges affecting the related
Mortgaged Property;
(vi) The
terms
of the Mortgage Note of the related Mortgagor and the Mortgage have not
been
impaired, waived, altered or modified in any respect, except by written
instruments which have been recorded to the extent any such recordation
is
required by applicable law or is necessary to protect the interests of
the
Purchaser, and which have been approved by the title insurer and the primary
mortgage insurer, as applicable, and copies of which written instruments
are
included in the Mortgage File. No other instrument of waiver, alteration
or
modification has been executed, and no Mortgagor has been released, in
whole or
in part, from the terms thereof except in connection with an assumption
agreement, which assumption agreement is part of the Mortgage File and
the terms
of which are reflected on the Mortgage Loan Schedule;
(vii) The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, nor will
the
operation of any of the terms of the Mortgage Note and the Mortgage, or
the
exercise of any right thereunder, render the Mortgage Note or Mortgage
unenforceable, in whole or in part, or subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, and,
to RWT
Holdings' knowledge, no such right of rescission, set-off, counterclaim
or
defense has been asserted with respect thereto;
(viii) All
buildings upon the Mortgaged Property are insured by a generally acceptable
insurer pursuant to standard hazard policies conforming to the requirements
of
Xxxxxx Mae and Xxxxxxx Mac. All such standard hazard policies are in effect
and
on the date of origination contained a standard mortgagee clause naming
the
Seller and its successors in interest as loss payee and such clause is
still in
effect and, to RWT Holdings' knowledge, all premiums due thereon have been
paid.
If the Mortgaged Property is located in an area identified by the Federal
Emergency Management Agency as having special flood hazards under the Flood
Disaster Protection Act of 1973, as amended, such Mortgaged Property is
covered
by flood insurance by a generally acceptable insurer in an amount not less
than
the requirements of Xxxxxx Mae and Xxxxxxx Mac. The Mortgage obligates
the
Mortgagor thereunder to maintain all such insurance at the Mortgagor's
cost and
expense, and on the Mortgagor's failure to do so, authorizes the holder
of the
Mortgage to maintain such insurance at the Mortgagor's cost and expense
and to
seek reimbursement therefor from the Mortgagor;
(ix) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures,
consumer
credit protection, equal credit opportunity or disclosure laws applicable
to the
Mortgage Loan have been complied with in all material respects;
(x) The
Mortgage has not been satisfied, canceled or subordinated, in whole or
in part,
or rescinded, and the Mortgaged Property has not been released from the
lien of
the Mortgage, in whole or in part nor has any instrument been executed
that
would effect any such satisfaction, release, cancellation, subordination
or
rescission;
(xi) The
Mortgage Note and the related Mortgage are original and genuine and each
is the
legal, valid and binding obligation of the maker thereof, enforceable in
all
respects in accordance with its terms subject to bankruptcy, insolvency
and
other laws of general application affecting the rights of creditors, and
the
Seller has taken all action necessary to transfer such rights of enforceability
to the Purchaser. All parties to the Mortgage Note and the Mortgage had
the
legal capacity to enter into the Mortgage Loan and to execute and deliver
the
Mortgage Note and the Mortgage. The Mortgage Note and the Mortgage have
been
duly and properly executed by such parties. The proceeds of the Mortgage
Note
have been fully disbursed and there is no requirement for future advances
thereunder, and any and all requirements as to completion of any on-site
or
off-site improvements and as to disbursements of any escrow funds therefor
have
been complied with;
(xii) Immediately
prior to the transfer and assignment to the Purchaser, the Mortgage Note
and the
Mortgage were not subject to an assignment or pledge, and the Seller had
good
and marketable title to and was the sole owner thereof and had full right
to
transfer and sell the Mortgage Loan to the Purchaser free and clear of
any
encumbrance, equity, lien, pledge, charge, claim or security
interest;
(xiii) The
Mortgage Loan is covered by an ALTA lender's title insurance policy or
other
generally acceptable form of policy of insurance, with all necessary
endorsements, issued by a title insurer qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring (subject
to the
exceptions contained in clause (b) (1), (2) and (3) above) the Seller,
its
successors and assigns, as to the first priority lien of the Mortgage in
the
original principal amount of the Mortgage Loan. Such title insurance policy
affirmatively insures ingress and egress and against encroachments by or
upon
the Mortgaged Property or any interest therein. The Seller is the sole
insured
of such lender's title insurance policy, such title insurance policy has
been
duly and validly endorsed to the Purchaser or the assignment to the Purchaser
of
the Seller's interest therein does not require the consent of or notification
to
the insurer and such lender's title insurance policy is in full force and
effect
and will be in full force and effect upon the consummation of the transactions
contemplated by the GreenPoint-RWT Agreement. To RWT Holdings' knowledge,
no
claims have been made under such lender's title insurance policy, and no
prior
holder of the related Mortgage has done, by act or omission, anything which
would impair the coverage of such lender's title insurance policy;
(xiv) There
is
no default, breach, violation or event of acceleration existing under the
Mortgage or the related Mortgage Note and, to RWT Holdings' 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
permitting acceleration; and neither the Seller nor any prior mortgagee
has
waived any default, breach, violation or event permitting
acceleration;
(xv) To
the
best of RWT Holdings' knowledge, there are no mechanics, or similar liens
or
claims which have been filed for work, labor or material affecting the
related
Mortgaged Property which are or may be liens prior to or equal to the lien
of
the related Mortgage;
(xvi) To
RWT
Holdings' knowledge, all improvements subject to the Mortgage lie wholly
within
the boundaries and building restriction lines of the Mortgaged Property
(and
wholly within the project with respect to a condominium unit) and no
improvements on adjoining properties encroach upon the Mortgaged Property
except
those which are insured against by the title insurance policy referred
to in
clause (xiii) above and all improvements on the property comply with all
applicable zoning and subdivision laws and ordinances;
(xvii) The
Mortgage Loan was originated by the Seller or by an eligible correspondent
of
the Seller. The Mortgage Loan complies in all material respects with all
the
terms, conditions and requirements of the Seller's underwriting standards
attached to the GreenPoint-RWT Agreement as Exhibit G. The Mortgage Notes
and
Mortgages are on forms acceptable to Xxxxxx Xxx or Xxxxxxx Mac;
(xviii) The
Mortgage Loan contains the usual and enforceable provisions of the originator
at
the time of origination for the acceleration of the payment of the unpaid
principal amount if the related Mortgaged Property is sold without the
prior
consent of the mortgagee thereunder. The Mortgage Loan has an original
term to
maturity of not more than 30 years, with interest payable in arrears on
the
first day of each month. Except as otherwise set forth on the Mortgage
Loan
Schedule, the Mortgage Loan does not contain terms or provisions which
would
result in negative amortization nor contain “graduated payment”
features;
(xix) The
Mortgaged Property at origination of the Mortgage Loan was and, to RWT
Holdings'
knowledge, currently is free of damage and waste and at origination of
the
Mortgage Loan there was, and, to RWT Holdings' knowledge, there currently
is, no
proceeding pending for the total or partial condemnation thereof;
(xx) The
related Mortgage contains enforceable provisions such as to render the
rights
and remedies of the holder thereof adequate for the realization against
the
Mortgaged Property of the benefits of the security provided thereby, including,
(1) in the case of a Mortgage designated as a deed of trust, by trustee's
sale,
and (2) otherwise by judicial foreclosure;
(xxi) If
the
Mortgage constitutes a deed of trust, a trustee, duly qualified if required
under applicable law to act as such, has been properly designated and currently
so serves and is named in the Mortgage, and no fees or expenses are or
will
become payable by the Purchaser to the trustee under the deed of trust,
except
in connection with a trustees sale or attempted sale after default by the
Mortgagor;
(xxii) If
required by the applicable processing style, the Mortgage File contains
an
appraisal of the related Mortgaged Property made and signed prior to the
final
approval of the mortgage loan application by a qualified appraiser satisfying
the requirements of Title XI of The Financial Institutions Reform, and
Enforcement Act of 1989, as amended, and the regulations promulgated thereunder,
that is acceptable to Xxxxxx Mae or Xxxxxxx Mac and approved by the Seller.
The
appraisal, if applicable, is in a form generally acceptable to Xxxxxx Mae
or
Xxxxxxx Mac;
(xxiii) All
parties which have had any interest in the Mortgage, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) (A) in substantial compliance with
any and
all applicable licensing requirements of the laws of the state wherein
the
Mortgaged Property is located, and (B) (1) organized under the laws of
such
state, or (2) qualified to do business in such state, or (3) federal savings
and
loan associations, national banks, a Federal Home Loan Bank or the Federal
Reserve Bank, or (4) not doing business in such state;
(xxiv) To
the
best of RWT Holdings' knowledge, there does not exist any circumstances
or
conditions with respect to the Mortgage, the Mortgaged Property, the Mortgagor
or the Mortgagor's credit standing that could reasonably be expected to
cause
private institutional investors to regard the Mortgage Loan as an unacceptable
investment, to cause the Mortgage Loan to become delinquent, or to materially
adversely affect the value or marketability of the Mortgage Loan;
(xxv) Each
of
the Mortgaged Properties consists of a single parcel of real property with
a
detached single-family residence erected thereon, or a two- to four-family
dwelling, or a townhouse, or an individual condominium unit in a condominium
project or an individual unit in a planned unit development. Any condominium
unit or planned unit development either conforms with applicable Xxxxxx
Mae or
Xxxxxxx Mac requirements regarding such dwellings or is covered by a waiver
confirming that such condominium unit or planned unit development is acceptable
to Xxxxxx Mae or Xxxxxxx Mac or is otherwise “warrantable” with respect thereto.
No such residence is a mobile home or manufactured dwelling;
(xxvi) The
ratio
of the original outstanding principal amount of the Mortgage Loan to the
lesser
of the appraised value (or stated value if an appraisal was not a requirement
of
the applicable processing style) of the Mortgaged Property at origination
or the
purchase price of the Mortgaged Property securing each Mortgage Loan (the
“Loan-to-Value Ratio”) is not in excess of 95.00%. The original Loan-to-Value
Ratio of each Mortgage Loan either was not more than 95.00% or the excess
over
80.00% is insured as to payment defaults by a Primary Mortgage Insurance
Policy
issued by a primary mortgage insurer acceptable to Xxxxxx Mae or Xxxxxxx
Mac;
(xxvii) The
Seller is either, and each Mortgage Loan was originated by, a savings and
loan
association, savings bank, commercial bank, credit union, insurance company
or
similar institution which is supervised and examined by a federal or State
authority, or by a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Section 203 and 211 of the National Housing
Act;
(xxviii) The
origination, collection and servicing practices with respect to each Mortgage
Note and Mortgage have been legal in all material respects. With respect
to
escrow deposits and payments that the Seller collects, all such payments
are in
the possession of, or under the control of, the Seller, and there exist
no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. No escrow deposits or other charges
or
payments due under the Mortgage Note have been capitalized under any Mortgage
or
the related Mortgage Note;
(xxvi) No
fraud
or misrepresentation of a material fact with respect to the origination
of a
Mortgage Loan has taken place on the part of the Seller;
(xxvii) No
Mortgage Loan contains a provision whereby the related Mortgagor can convert
the
related Mortgage Loan to a fixed rate instrument;
(xxxi) No
Mortgage Loan was originated on or after October 1, 2002 and prior to March
7,
2003, which is secured by property located in the State of Georgia. No
Mortgage
Loan was originated on or after March 7, 2003 which is a “high cost home loan”
as defined under the Georgia Fair Lending Act;
(xxxii) Each
Mortgage Loan at the time it was made complied in all material respects
with
applicable local, state, and federal laws, including, but not limited to,
all
applicable predatory and abusive lending laws;
(xxxiii) No
Mortgage Loan is covered by the Home Ownership and Equity Protection Act
of 1994
and none of the mortgage loans are High Cost as defined by the applicable
predatory and abusive lending laws and no mortgage loan is a “high cost” or
“covered” mortgage loan, as applicable (as such terms are defined in the then
current Standard and Poor’s LEVELS Glossary which is now Version 6.0, Appendix
E);
(xxxiv)
No Mortgage Loan which is secured by property located in the State of New
Jersey
is a “High-Cost Home Loan” as defined in the New Jersey Home Ownership Act,
which became effective November 27, 2003;
(xxxv)
No
Mortgage Loan which is secured by property located in the State of New
Mexico is
a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act,
which became effective January 1, 2004;
(xxxvi)
No Mortgage Loan which is secured by property located in the State of Kentucky
is a “High-Cost Home Loan” as defined in the Kentucky House Xxxx 287, which
became effective June 24, 2003;
(xxxvii)
None of the proceeds of any Mortgage Loan were used to finance the purchase
of
single premium credit insurance policies;
(xxxviii)
No Mortgage Loan contains prepayment penalties that extend beyond five
years
after the date of origination;
(xxxix) Each
Mortgage Loan would be a “qualified mortgage” within the meaning of Section
860G(a)(3)(A) of the Code and Treasury Regulations Section 1.860G-2(a)(1)
if
transferred to a REMIC on its startup date in exchange for the regular
or
residual interests of the REMIC; and
(xl) There
were no adverse selection procedures used in selecting the Mortgage Loan
from
among the residential mortgage loans which were available for inclusion
in the
Mortgage Loans.
III.
|
Mortgage
Loans Purchased under the Mortgage Loan Flow Purchase , Sale
and Servicing
Agreement
dated as of January 1, 2006 between
RWT Holdings, Inc. (“RWT Holdings”) and GreenPoint Mortgage Funding, Inc.
(the “Seller/Servicer”) (the “GreenPoint-RWT
Agreement”).
|
With
respect to each Mortgage Loan, RWT Holdings hereby makes the following
representations and warranties. Such representations and warranties speak
as of
the Closing Date with respect to the Mortgage Loans (as such capitalized
terms
are defined in the Pooling and Servicing Agreement), unless otherwise indicated.
Capitalized terms are as defined in this Schedule A or in the GreenPoint-RWT
Agreement.
(i)
The
information set forth in the Mortgage Loan Schedule is true, complete
and
correct
in all material respects as of the Cut-Off Date and
the
information provided to the rating agencies, including the loan level detail,
is
true and correct according to the rating agency requirements;
(ii)
The
Mortgage creates a first lien on or a first priority ownership interest
in real
property securing the related Mortgage Note, free and clear of all adverse
claims, liens and encumbrances having priority over the first lien of the
Mortgage subject only to (1) the lien of nondelinquent current real property
taxes and assessments not yet due and payable, (2) covenants, conditions
and
restrictions, rights of way, easements and other matters of public record
as of
the date of recording which are acceptable to mortgage lending institutions
generally and, with respect to any Mortgage Loan for which an appraisal
was made
prior to the Cut-Off Date, either (A) which are referred to or otherwise
considered in the appraisal made for the originator of the Mortgage Loan,
or (B)
which do not adversely affect the appraised value of the Mortgaged Property
as
set forth in such appraisal, and (C) other matters to which like properties
are
commonly subject which do not materially interfere with the benefits of
the
security intended to be provided by the Mortgage or the use, enjoyment,
value or
marketability of the related Mortgaged Property. If the Mortgaged Property
includes a leasehold estate, the lease is valid, in full force and affect,
and
conforms to the Xxxxxx Xxx requirements for leasehold estates. Any security
agreement, chattel mortgage or equivalent document related to and delivered
in
connection with the Mortgage Loan establishes and creates a valid, subsisting
and enforceable first lien and first priority security interest on the
property
described therein;
(iii)
The
Mortgage Loan has not been delinquent thirty (30) days or more at any time
during the twelve (12) month period prior to the Cut-off Date for such
Mortgage
Loan. There are no defaults under the terms of the Mortgage Loan; and the
Seller
has not advanced funds, or induced, solicited or knowingly received any
advance
of funds from a party other than the owner of the Mortgaged Property subject
to
the Mortgage, directly or indirectly, for the payment of any amount required
by
the Mortgage Loan;
(iv)
There are no delinquent taxes which are due and payable, ground rents,
assessments or other outstanding charges affecting the related Mortgaged
Property;
(v)
The
terms of the Mortgage Note of the related Mortgagor and the Mortgage
have
not
been
impaired, waived, altered or modified in any respect, except by written
instruments which have been recorded to the extent any such recordation
is
required by applicable law or is necessary to protect the interests of
the
Purchaser, and which have been approved by the title insurer and the primary
mortgage insurer, as applicable, and copies of which written instruments
are
included in the Mortgage File. No other instrument of waiver, alteration
or
modification has been executed, and no Mortgagor has been released, in
whole or
in part, from the terms thereof except in connection with an assumption
agreement, which assumption agreement is part of the Mortgage File and
the terms
of which are reflected on the Mortgage Loan Schedule;
(vi)
The
Mortgage Note and the Mortgage are not subject to any right of rescission,
setoff, counterclaim or defense, including the defense of usury, nor will
the
operation of any of the terms of the Mortgage Note and the Mortgage, or
the
exercise of any right thereunder, render the Mortgage Note or Mortgage
unenforceable, in whole or in part, or subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, and no
such
right of rescission, set-off, counterclaim or defense has been asserted
with
respect thereto;
(vii)
All
buildings upon the Mortgaged Property are insured by a generally acceptable
insurer pursuant to standard hazard policies conforming to the requirements
of
Xxxxxx Mae and Xxxxxxx Mac. All such standard hazard policies are in effect
and
on the date of origination contained a standard mortgagee clause naming
the
Seller and its successors in interest as loss payee and such clause is
still in
effect and all premiums due thereon have been paid. If the Mortgaged Property
is
located in an area identified by the Federal Emergency Management Agency
as
having special flood hazards under the Flood Disaster Protection Act of
1973, as
amended, such Mortgaged Property is covered by flood insurance by a generally
acceptable insurer in an amount not less than the requirements of Xxxxxx
Mae and
Xxxxxxx Mac. The Mortgage obligates the Mortgagor thereunder to maintain
all
such insurance at the Mortgagor's cost and expense, and on
the
Mortgagor's failure to do so, authorizes the holder of the Mortgage to
maintain
such insurance at the Mortgagor's cost and expense and to seek reimbursement
therefor from the Mortgagor;
(viii)
Any and all requirements of any federal, state or local law including,
without
limitation, usury, truth-in-lending, real estate settlement procedures,
consumer
credit protection, equal credit opportunity or disclosure laws applicable
to the
Mortgage Loan have been complied with in all material respects;
(ix)
The
Mortgage has not been satisfied, canceled or subordinated, in whole or
in part,
or rescinded, and the Mortgaged Property has not been released from the
lien of
the Mortgage, in whole or in part nor has any instrument been executed
that
would effect any such satisfaction, release, cancellation, subordination
or
rescission;
(x)
The
Mortgage Note and the related Mortgage are original and genuine and each
is the
legal, valid and binding obligation of the maker thereof, enforceable in
all
respects in accordance with its terms subject to bankruptcy, insolvency
and
other laws of general application affecting the rights of creditors, and
the
Seller has taken all action necessary to transfer such rights of enforceability
to the Purchaser. All parties to the Mortgage Note and the Mortgage had
the
legal capacity to enter into the Mortgage Loan and to execute and deliver
the
Mortgage Note and the Mortgage. The Mortgage Note and the Mortgage have
been
duly and properly executed by such parties. The proceeds of the Mortgage
Note
have been fully disbursed and there is no requirement for future advances
thereunder, and any and all requirements as to completion of any on-site
or
offsite improvements and as to disbursements of any escrow funds therefor
have
been complied with;
(xi)
Immediately prior to the transfer and assignment to the Purchaser, the
Mortgage
Note and the Mortgage were not subject to an assignment or pledge, and
the
Seller had good and marketable title to and was the sole owner thereof
and had
full right to transfer and sell the Mortgage Loan to the Purchaser free
and
clear of any encumbrance, equity, lien, pledge, charge, claim or security
interest;
(xii)
The
Mortgage Loan is covered by an ALTA lender's title insurance policy or
other
generally acceptable form of policy of insurance, with all necessary
endorsements, issued by a title insurer qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring (subject
to the
exceptions contained in clause (b) (1), (2) and (3) above) the Seller,
its
successors and assigns, as to the first priority lien of the Mortgage in
the
original principal amount of the Mortgage Loan. Such title insurance policy
affirmatively insures ingress and egress and against encroachments by or
upon
the Mortgaged Property or any interest therein. The Seller is the sole
insured
of such lender's title insurance policy, such title insurance policy has
been
duly and validly endorsed to the Purchaser or the assignment to the Purchaser
of
the Seller's interest therein does not require the consent of or notification
to
the insurer and such lender's title insurance policy is in full force and
effect
and will be in full force and effect upon the consummation of the transactions
contemplated by the
GreenPoint-RWT
Agreement. No claims have been made under such lender's title insurance
policy,
and no prior holder of the related Mortgage has done, by act or omission,
anything which would impair the coverage of such lender's title insurance
policy;
(xiii)
There is no default, breach, violation or event of acceleration existing
under
the Mortgage or the related Mortgage Note and, to 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
permitting acceleration; and neither the Seller nor any prior mortgagee
has
waived any default, breach, violation or event permitting
acceleration;
(xiv)
To
the best of the Seller’s knowledge, there are no mechanics, or similar liens or
claims which have been filed for work, labor or material affecting the
related
Mortgaged Property which are or may be liens prior to or equal to the lien
of
the related Mortgage;
(xv)
All
improvements subject to the Mortgage lie wholly within the boundaries and
building restriction lines of the Mortgaged Property (and wholly within
the
project with respect to a condominium unit) and no improvements on adjoining
properties encroach upon the Mortgaged Property except those which are
insured
against by the title insurance policy referred to in clause (xii) above
and all
improvements on the property comply with all applicable zoning and subdivision
laws and ordinances;
(xvi)
The
Mortgage Loan was originated by the Seller or by an eligible correspondent
of
the Seller. The Mortgage Loan complies in all material respects with all
the
terms, conditions and requirements of the Seller's underwriting standards
attached here as Exhibit G. The Mortgage Notes and Mortgages are on forms
acceptable to Xxxxxx Xxx or Xxxxxxx Mac;
(xvii)
The Mortgage Loan contains the usual and enforceable provisions of the
originator at the time of origination for the acceleration of the payment
of the
unpaid principal amount if the related Mortgaged Property is sold without
the
prior consent of the mortgagee thereunder. The Mortgage Loan has an original
term to maturity of not more than 40 years, with interest payable in arrears
on
the first day of each month. Except as otherwise set forth on the Mortgage
Loan
Schedule, the Mortgage Loan does not contain terms or provisions which
would
result in negative amortization nor contain “graduated payment”
features;
(xviii)
The Mortgaged Property at origination of the Mortgage Loan was and, to
the
Seller’s knowledge, currently is free of damage and waste and at origination of
the Mortgage Loan there was, and, to the Seller’s knowledge, there currently is,
no proceeding pending for the total or partial condemnation
thereof;
(xix)
The
related Mortgage contains enforceable provisions such as to render the
rights
and remedies of the holder thereof adequate for the realization against
the
Mortgaged Property of the benefits of the security provided thereby, including,
(1) in the case of a Mortgage designated as a deed of trust, by trustee's
sale,
and (2) otherwise by judicial foreclosure;
(xx)
If
the Mortgage constitutes a deed of trust, a trustee, duly qualified if
required
under applicable law to act as such, has been properly designated and currently
so serves and is named in the Mortgage, and no fees or expenses are or
will
become payable by the Purchaser to the trustee under the deed of trust,
except
in connection with a trustees sale or attempted sale after default by the
Mortgagor;
(xxi)
If
required by the applicable processing style, the Mortgage File contains
an
appraisal
of the related Mortgaged Property made and signed prior to the final approval
of
the mortgage loan application by a qualified appraiser satisfying the
requirements of Title XI of The Financial Institutions Reform, and Enforcement
Act of 1989, as amended, and the regulations promulgated thereunder, that
is
acceptable to Xxxxxx Xxx or Xxxxxxx Mac and approved by the Seller. The
appraisal, if applicable, is in a form generally acceptable to Xxxxxx Mae
or
Xxxxxxx Mac;
(xxii)
All parties which have had any interest in the Mortgage, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) (A) in substantial compliance with
any and
all applicable licensing requirements of the laws of the state wherein
the
Mortgaged Property is located, and (B) (1) organized under the laws of
such
state, or (2) qualified to do business in such state, or (3) federal savings
and
loan associations, national banks, a Federal Home Loan Bank or the Federal
Reserve Bank, or (4) not doing business in such state;
(xxiii)
To the best of the Seller’s knowledge, there does not exist any circumstances or
conditions with respect to the Mortgage, the Mortgaged Property, the Mortgagor
or the Mortgagor's credit standing that could reasonably be expected to
cause
private institutional investors to regard the Mortgage Loan as an unacceptable
investment, to cause the Mortgage Loan to become delinquent, or to materially
adversely affect the value or marketability of the Mortgage Loan;
(xxiv)
Each of the Mortgaged Properties consists of a single parcel of real property
with a detached single-family residence erected thereon, or a two- to
four-family dwelling, or a townhouse, or an individual condominium unit
in a
condominium project or an individual unit in a planned unit development.
Any
condominium unit or planned unit development either conforms with applicable
Xxxxxx Mae or Xxxxxxx Mac requirements regarding such dwellings or is covered
by
a waiver confirming that such condominium unit or planned unit development
is
acceptable to Xxxxxx Mae or Xxxxxxx Mac or is otherwise “warrantable” with
respect thereto. No such residence is a mobile home or manufactured
dwelling;
(xxv)
The
ratio of the original outstanding principal amount of the Mortgage Loan
to the
lesser of the appraised value (or stated value if an appraisal was not
a
requirement of the applicable processing style) of the Mortgaged Property
at
origination or the purchase price of the Mortgaged Property securing each
Mortgage Loan (the “Loan-to-Value Ratio”) is not in excess of 95.00%. The
original Loan-to-Value Ratio of each Mortgage Loan either was not more
than
95.00% or the excess over 80.00% is insured as to payment defaults by a
Primary
Mortgage Insurance Policy issued by a primary mortgage insurer acceptable
to
Xxxxxx Mae or Xxxxxxx Mac;
(xxvi)
The Seller is either, and each Mortgage Loan was originated by, a savings
and
loan association, savings bank, commercial bank, credit union, insurance
company
or similar institution which is supervised and examined by a federal or
State
authority, or by a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Section 203 and 211 of the National Housing
Act;
(xxvii)
The origination, collection and servicing practices with respect to each
Mortgage Note and Mortgage have been legal in all material respects. With
respect to escrow deposits and payments that the Seller collects, all such
payments are in the possession of, or under the control of, the Seller,
and
there exist no deficiencies in connection therewith for which customary
arrangements for repayment thereof have not been made. No escrow deposits
or
other charges or payments due under the Mortgage Note have been capitalized
under any Mortgage or the related Mortgage Note;
(xxviii)
No fraud or misrepresentation of a material fact with respect to the origination
of a Mortgage Loan has taken place on the part of the Seller;
(xxix)
No
Mortgage Loan contains a provision whereby the related Mortgagor can convert
the
related Mortgage Loan to a fixed rate instrument;
(xxx)
No
Mortgage Loan was originated on or after October 1, 2002 and prior to March
7,
2003, which is secured by property located in the State of Georgia. No
Mortgage
Loan was originated on or after March 7, 2003 which is a “high cost home loan”
as defined under the Georgia Fair Lending Act, which became effective October
1,
2002;
(xxxi) Each
Mortgage Loan at the time it was made complied in all material respects
with
applicable local, state, and federal laws, including, but not limited to,
all
applicable predatory and abusive lending laws;
(xxxii) None
of
the mortgage loans are High Cost as defined by the applicable local, state
and
federal predatory and abusive lending laws and no mortgage loan is a “high cost”
or “covered” mortgage loan, as applicable (as such terms are defined in the then
current Standard and Poor’s LEVELS Glossary which is now Version 6.0, Appendix
E);
(xxxiii)
No Mortgage Loan which is secured by property located in the State of New
Jersey
is a “High-Cost Home Loan” as defined in the New Jersey Home Ownership Act,
which became effective November 27, 2003;
(xxxiv)
No Mortgage Loan which is secured by property located in the State of New
Mexico
is a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection
Act, which became effective January 1, 2004;
(xxxv)
No
Mortgage Loan which is secured by property located in the State of Kentucky
is a
“High-Cost Home Loan” as defined in the Kentucky House Xxxx 287, which became
effective June 24, 2003;
(xxxvi) No
Mortgage Loan which is secured by property located in the Commonwealth
of
Massachusetts is a "High Cost Home Mortgage Loan" as defined in the
Massachusetts Predatory Home Loan Practices Act (Mass. Xxx. Laws ch. 183C)
which
became effective November 7, 2004;
(xxxvii) No
Mortgage Loan that is secured by property located in the State of Illinois
is a
"High-Risk Home Loan" as defined in the Illinois High Risk Home Loan Act
effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et seq.); and none
of the
Mortgage Loans that are secured by property located in the State of Illinois
are
in violation of the provisions of the Illinois Interest Act (815 Ill. Comp.
Stat. 205/1 et. seq.);
(xxxviii) No
Mortgage Loan that is secured by property located in the State of Indiana
is a
"High Cost Home Loan" as defined in Indiana’s Home Loan Practices Act (I.C.
24-9), which became effective January 1, 2005;
(xxxix) None
of
the proceeds of any Mortgage Loan were used to finance the purchase of
single
premium credit insurance policies;
(xl) No
Mortgage Loan contains prepayment penalties that extend beyond five years
after
the date of origination;
(xli) Each
Mortgage Loan would be a “qualified mortgage” within the meaning of Section
860G(a)(3)(A) of the Code and Treasury Regulations Section 1.860G-2(a)(1)
if
transferred to a REMIC on its startup date in exchange for the regular
or
residual interests of the REMIC; and
(xlii) There
were no
adverse selection procedures used in selecting the Mortgage Loan from among
the
residential mortgage loans which were available for inclusion in the Mortgage
Loans.
IV.
|
With
respect to Mortgage Loans purchased under the Seller’s Purchase,
Warranties and Interim Servicing Agreement, dated as of January
1, 2004,
between GreenPoint Mortgage Funding, Inc. (“GreenPoint") and GMAC Mortgage
Corporation (“GMAC”) and assigned to RWT by GMAC under the Assignment,
Assumption and Recognition Agreement(s), dated as of the dates
of the
Purchase Price and Terms Letter(s), among GMAC, GreenPoint and
RWT
(together, the "GMAC-RWT
Agreement")
|
With
respect to each Mortgage Loan, RWT Holdings hereby makes the following
representations and warranties. Such representations and warranties speak
as of
the Closing Date with respect to the Mortgage Loans (as such capitalized
terms
are defined in the Pooling and Servicing Agreement), unless otherwise indicated.
Capitalized terms are as defined in this Schedule A or in the GMAC-RWT
Agreement.
(a) The
information set forth in the related Mortgage Loan Schedule, including
any
diskette or other related data tapes sent to the Purchaser, is complete,
true
and correct in all material respects and the
information provided to the rating agencies, including the loan level detail,
is
true and correct according to the rating agency requirements;
(b) The
Mortgage creates a first lien or a first priority ownership interest in
an
estate in fee simple in real property securing the related Mortgage
Note;
(c) All
payments due on or prior to the related Closing Date for such Mortgage
Loan have
been made as of the related Closing Date, the Mortgage Loan is not delinquent
in
payment more than 30 days and has not been dishonored; there are no material
defaults under the terms of the Mortgage Loan; RWT Holdings has not advanced
funds, or induced, solicited or knowingly received any advance of funds
from a
party other than the owner of the Mortgaged Property subject to the Mortgage,
directly or indirectly, for the payment of any amount required by the Mortgage
Loan; no payment with respect to each Mortgage Loan has been delinquent
during
the preceding twelve-month period;
(d) All
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due
and
owing have been paid, or escrow funds have been established in an amount
sufficient to pay for every such escrowed item which remains unpaid and
which
has been assessed but is not yet due and payable;
(e) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments which have been
recorded
to the extent any such recordation is required by law. No instrument of
waiver,
alteration or modification has been executed, and no Mortgagor has been
released, in whole or in part, from the terms thereof except in connection
with
an assumption agreement and which assumption agreement is part of the Mortgage
File and the terms of which are reflected in the related Mortgage Loan
Schedule;
the substance of any such waiver, alteration or modification has been approved
by the issuer of any related Primary Mortgage Insurance Policy and title
insurance policy, to the extent required by the related policies;
(f) The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including, without limitation, the defense
of
usury, nor will the operation of any of the terms of the Mortgage Note
or the
Mortgage, or the exercise of any right thereunder, render the Mortgage
Note or
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of
usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto; and the Mortgagor was not a debtor in any
state
or federal bankruptcy or insolvency proceeding at the time the Mortgage
Loan was
originated;
(g) All
buildings or other customarily insured improvements upon the Mortgaged
Property
are insured by an insurer acceptable under the Xxxxxx Mae Guides, against
loss
by fire, hazards of extended coverage and such other hazards as are provided
for
in the Xxxxxx Xxx Guides or by the Xxxxxxx Mac Guides, in an amount representing
coverage not less than the lesser of (i) the maximum insurable value of
the
improvements securing such Mortgage Loans, and (ii) the greater of (a)
the
outstanding principal balance of the Mortgage Loan, and (b) an amount such
that
the proceeds thereof shall be sufficient to prevent the Mortgagor and/or
the
mortgagee from becoming a co-insurer. All such standard hazard policies
are in
full force and effect and on the date of origination contained a standard
mortgagee clause naming RWT Holdings and its successors in interest and
assigns
as loss payee and such clause is still in effect and all premiums due thereon
have been paid. If required by the Flood Disaster Protection Act of 1973,
as
amended, the Mortgage Loan is covered by a flood insurance policy meeting
the
requirements of the current guidelines of the Federal Insurance Administration
which policy conforms to Xxxxxx Xxx and Xxxxxxx Mac requirements, in an
amount
not less than the amount required by the Flood Disaster Protection Act
of 1973,
as amended. Such policy was issued by an insurer acceptable under Xxxxxx
Mae or
Xxxxxxx Mac guidelines. The Mortgage obligates the Mortgagor thereunder
to
maintain all such insurance at the Mortgagor’s cost and expense, and upon the
Mortgagor’s failure to do so, authorizes the holder of the Mortgage to maintain
such insurance at the Mortgagor’s cost and expense and to seek reimbursement
therefor from the Mortgagor;
(h) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures,
consumer
credit protection, equal credit opportunity, fair housing, or disclosure
laws
applicable to the Mortgage Loan have been complied with in all material
respects;
(i) The
Mortgage has not been satisfied, canceled or subordinated, in whole or
in part,
or rescinded, and the Mortgaged Property has not been released from the
lien of
the Mortgage, in whole or in part nor has any instrument been executed
that
would effect any such release, cancellation, subordination or rescission.
RWT
Holdings has not waived the performance by the Mortgagor of any action,
if the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has RWT Holdings waived any default resulting from any
action or
inaction by the Mortgagor;
(j) The
related Mortgage is a valid, subsisting, enforceable and perfected first
lien on
the Mortgaged Property including all buildings on the Mortgaged Property
and all
installations and mechanical, electrical, plumbing, heating and air conditioning
systems affixed to such buildings, and all additions, alterations and
replacements made at any time with respect to the foregoing securing the
Mortgage Note’s original principal balance. The Mortgage and the Mortgage Note
do not contain any evidence of any security interest or other interest
or right
thereto. Such lien is free and clear of all adverse claims, liens and
encumbrances having priority over the first lien of the Mortgage subject
only to
(1) the lien of non-delinquent current real property taxes and assessments
not
yet due and payable, (2) covenants, conditions and restrictions, rights
of way,
easements and other matters of the public record as of the date of recording
which are acceptable to mortgage lending institutions generally and either
(A)
which are referred to or otherwise considered in the appraisal made for
the
originator of the Mortgage Loan, or (B) which do not adversely affect the
appraised value of the Mortgaged Property as set forth in such appraisal,
and
(3) other matters to which like properties are commonly subject which do
not
materially interfere with the benefits of the security intended to be provided
by the Mortgage or the use, enjoyment, value or marketability of the related
Mortgaged Property. Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
establishes and creates (1) a valid, subsisting, enforceable and perfected
first
lien and first priority security interest and on the property described
therein,
and RWT Holdings has the full right to sell and assign the same to the
Purchaser;
(k) The
Mortgage Note and the related Mortgage are original and genuine and each
is the
legal, valid and binding obligation of the maker thereof, enforceable in
all
respects in accordance with its terms subject to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application affecting
the
rights of creditors and by general equitable principles and RWT Holdings
has
taken all action necessary to transfer such rights of enforceability to
the
Purchaser. All parties to the Mortgage Note and the Mortgage had the legal
capacity to enter into the Mortgage Loan and to execute and deliver the
Mortgage
Note and the Mortgage. The Mortgage Note and the Mortgage have been duly
and
properly executed by such parties. No fraud, error, omission, misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan has taken
place
on the part of GreenPoint or the Mortgagor, or, on the part of any other
party
involved in the origination of the Mortgage Loan. The proceeds of the Mortgage
Loan have been fully disbursed and there is no requirement for future advances
thereunder, and any and all requirements as to completion of any on-site
or
off-site improvements and as to disbursements of any escrow funds therefor
have
been complied with. All costs, fees and expenses incurred in making or
closing
the Mortgage Loan and the recording of the Mortgage were paid or are in
the
process of being paid, and the Mortgagor is not entitled to any refund
of any
amounts paid or due under the Mortgage Note or Mortgage;
(l) RWT
Holdings is the sole owner of record and holder of the Mortgage Loan and
the
indebtedness evidenced by the Mortgage Note, and upon recordation the Purchaser
or its designee will be the owner of record of the Mortgage and the indebtedness
evidenced by the Mortgage Note, and upon the sale of the Mortgage Loan
to the
Purchaser, GreenPoint will retain the Servicing File in trust for the Purchaser
only for the purpose of interim servicing and supervising the interim servicing
of the Mortgage Loan. Immediately prior to the transfer and assignment
to the
Purchaser on the related Closing Date, the Mortgage Loan, including the
Mortgage
Note and the Mortgage, were not subject to an assignment or pledge, and
RWT
Holdings had good and marketable title to and was the sole owner thereof
and had
full right to transfer and sell the Mortgage Loan to the Purchaser free
and
clear of any encumbrance, equity, lien, pledge, charge, claim or security
interest and has the full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign
the
Mortgage Loan pursuant to the GMAC-RWT Agreement and following the sale
of the
Mortgage Loan, the Purchaser will own such Mortgage Loan free and clear
of any
encumbrance, equity, participation interest, lien, pledge, charge, claim
or
security interest. RWT Holdings intends to relinquish all rights to possess,
control and monitor the Mortgage Loan, except for the purposes of servicing
the
Mortgage Loan as set forth in the GMAC-RWT Agreement.
Either
the Mortgagor is a natural person or the Mortgagor is an inter-vivos trust
acceptable to Xxxxxx Mae;
(m) Each
Mortgage Loan is covered by an ALTA lender’s title insurance policy or other
generally acceptable form of policy or insurance acceptable to Xxxxxx Xxx
or
Xxxxxxx Mac, issued by a title insurer acceptable to Xxxxxx Mae or Xxxxxxx
Mac
and qualified to do business in the jurisdiction where the Mortgaged Property
is
located, insuring (subject to the exceptions contained in (j)(1), (2) and
(3)
above) RWT Holdings, its successors and assigns, as to the first priority
lien
of the Mortgage in the original principal amount of the Mortgage Loan.
Additionally, such policy affirmatively insures ingress and egress to and
from
the Mortgaged Property. Where required by applicable state law or regulation,
the Mortgagor has been given the opportunity to choose the carrier of the
required mortgage title insurance. RWT Holdings, its successors and assigns,
are
the sole insureds of such lender’s title insurance policy, such title insurance
policy has been duly and validly endorsed to the Purchaser or the assignment
to
the Purchaser of RWT Holdings’ interest therein does not require the consent of
or notification to the insurer and such lender’s title insurance policy is in
full force and effect and will be in full force and effect upon the consummation
of the transactions contemplated by the GMAC-RWT Agreement and the related
Purchase Price and Terms Letter. No claims have been made under such lender’s
title insurance policy, and neither RWT Holdings nor any prior holder of
the
related Mortgage, has done, by act or omission, anything which would impair
the
coverage of such lender’s title insurance policy;
(n) 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 permitting acceleration;
and
neither RWT Holdings nor any prior mortgagee has waived any default, breach,
violation or event permitting acceleration;
(o) As
of the
related Closing Date, there are no mechanics’ or similar liens or claims which
have been filed for work, labor or material (and no rights are outstanding
that
under law could give rise to such liens) affecting the related Mortgaged
Property which are or may be liens prior to or equal to the lien of the
related
Mortgage;
(p) All
improvements subject to the Mortgage which were considered in determining
the
Appraised Value of the Mortgaged Property lie wholly within the boundaries
and
building restriction lines of the Mortgaged Property (and wholly within
the
project with respect to a condominium unit) and no improvements on adjoining
properties encroach upon the Mortgaged Property except those which are
insured
against by the title insurance policy referred to in clause (m) above and
all
improvements on the property comply with all applicable zoning and subdivision
laws and ordinances;
(q) The
Mortgage Loan was originated by or for GreenPoint. The Mortgage Loan complies
with all the terms, conditions and requirements of the GreenPoint’s Underwriting
Standards in effect at the time of origination of such Mortgage Loan. The
Mortgage Notes and Mortgages (exclusive of any riders) are on forms generally
acceptable to Xxxxxx Xxx or Xxxxxxx Mac. GreenPoint is currently selling
loans
to Xxxxxx Mae and/or Xxxxxxx Mac which are the same document forms as the
Mortgage Notes and Mortgages (inclusive of any riders). The Mortgage Loan
bears
interest at the Mortgage Interest Rate set forth in the related Mortgage
Loan
Schedule, and Monthly Payments under the Mortgage Note are due and payable
on
the first day of each month. The Mortgage contains the usual and enforceable
provisions of the originator at the time of origination for the acceleration
of
the payment of the unpaid principal amount of the Mortgage Loan if the
related
Mortgaged Property is sold without the prior consent of the mortgagee
thereunder;
(r) As
of the
related Closing Date, the Mortgaged Property is not subject to any material
damage by waste, fire, earthquake, windstorm, flood or other casualty.
At
origination of the Mortgage Loan there was, and there currently is, no
proceeding pending for the total or partial condemnation of the Mortgaged
Property. There have not been any condemnation proceedings with respect
to the
Mortgaged Property and there are no such proceedings scheduled to commence
at a
future date;
(s) The
related Mortgage contains customary and enforceable provisions such as
to render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security provided
thereby.
There is no homestead or other exemption available to the Mortgagor which
would
interfere with the right to sell the Mortgaged Property at a trustee’s sale or
the right to foreclose the Mortgage;
(t) If
the
Mortgage constitutes a deed of trust, a trustee, authorized and duly qualified
if required under applicable law to act as such, has been properly designated
and currently so serves and is named in the Mortgage, and no fees or expenses
are or will become payable by the Purchaser to the trustee under the deed
of
trust, except in connection with a trustee’s sale or attempted sale after
default by the Mortgagor;
(u) The
Mortgage File contains an appraisal of the related Mortgaged Property signed
prior to the final approval of the mortgage loan application by a Qualified
Appraiser, who had no interest, direct or indirect, in the Mortgaged Property
or
in any loan made on the security thereof, and whose compensation is not
affected
by the approval or disapproval of the Mortgage Loan, and the appraisal
and
appraiser both satisfy the requirements of Xxxxxx Mae or Xxxxxxx Mac and
Title
XI of FIRREA and the regulations promulgated thereunder, all as in effect
on the
date the Mortgage Loan was originated. The appraisal is in a form acceptable
to
Xxxxxx Mae or Xxxxxxx Mac;
(v) All
parties which have had any interest in the Mortgage, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) (A) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the
Mortgaged
Property is located, and (B) (1) organized under the laws of such state,
or (2)
qualified to do business in such state, or (3) federal savings and loan
associations or national banks or a Federal Home Loan Bank or savings bank
having principal offices in such state, or (4) not doing business in such
state;
(w) As
of the
related Closing Date, the related Mortgage Note is not and has not been
secured
by any collateral except the lien of the corresponding Mortgage and the
security
interest of any applicable security agreement or chattel mortgage referred
to in
(j) above and such collateral does not serve as security for any other
obligation;
(x) The
Mortgagor has received all disclosure materials required by applicable
law with
respect to the making of such mortgage loans;
(y) The
Mortgage Loan does not contain “graduated payment” features and does not have a
shared appreciation or other contingent interest feature; no Mortgage Loan
contains any buydown provisions;
(z) As
of the
related Closing Date, the Mortgagor is not in bankruptcy and the Mortgagor
is
not insolvent and RWT Holdings has no knowledge of any circumstances or
condition with respect to the Mortgage, the Mortgaged Property, the Mortgagor
or
the Mortgagor’s credit standing that could reasonably be expected to cause
investors to regard the Mortgage Loan as an unacceptable investment, cause
the
Mortgage Loan to become delinquent, or materially adversely affect the
value or
marketability of the Mortgage Loan;
(aa) The
Mortgage Loans have an original term to maturity of not more than 30 years,
with
interest payable in arrears on the first day of each month. Each Mortgage
Note
requires a monthly payment which is sufficient to fully amortize the original
principal balance over the original term thereof and to pay interest at
the
related Mortgage Interest Rate. No Mortgage Loan contains terms or provisions
which would result in negative amortization;
(bb) If
a
Mortgage Loan has an LTV greater than 80%, the Mortgage Loan will have
mortgage
insurance in accordance with the terms of the Xxxxxx Mae Guides and will
be
insured as to payment defaults by a Primary Mortgage Insurance Policy issued
by
a Qualified Insurer. All provisions of such Primary Mortgage Insurance
Policy
have been and are being complied with, such policy is in full force and
effect,
and all premiums due thereunder have been paid. No action, inaction, or
event
has occurred and no state of facts exists that has, or will result in the
exclusion from, denial of, or defense to coverage. Any Mortgage Loan subject
to
a Primary Mortgage Insurance Policy obligates the Mortgagor thereunder
to
maintain the Primary Mortgage Insurance Policy and to pay all premiums
and
charges in connection therewith. The mortgage interest rate for the Mortgage
Loan as set forth on the related Mortgage Loan Schedule is net of any such
insurance premium. No Mortgage Loan is subject to a lender-paid mortgage
insurance policy;
(cc) As
to any
Mortgage Loan which is not a MERS Mortgage Loan, the Assignment of Mortgage
is
in recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located;
(dd) The
Mortgaged Property is located in the state identified in the related Mortgage
Loan Schedule and consists of a single parcel of real property with a detached
single family residence erected thereon, or a townhouse, or a two-to four-family
dwelling, or an individual condominium unit in a condominium project, or
an
individual unit in a planned unit development or a de minimis planned unit
development, provided, however, that no residence or dwelling is a single
parcel
of real property with a cooperative housing corporation erected thereon,
or a
mobile home. As of the date of origination, no portion of the Mortgaged
Property
was used for commercial purposes, and since the date or origination no
portion
of the Mortgaged Property has been used for commercial purposes;
(ee) Principal
payments on the Mortgage Loan commenced no more than sixty (60) days after
the
funds were disbursed in connection with the Mortgage Loan. The Mortgage
Note is
payable on the first day of each month in equal monthly installments of
principal and interest, with interest calculated and payable in arrears,
sufficient to amortize the Mortgage Loan fully by the stated maturity date,
over
an original term of not more than thirty years from commencement of
amortization;
(ff) The
Mortgage Loans may be subject to a Prepayment Penalty as identified on
the
Mortgage Loan Schedule; however, no Mortgage Loan contains prepayment penalties
that extend beyond five years after the date of origination;
(gg) As
of the
related Closing Date, the Mortgaged Property is lawfully occupied under
applicable law, and all inspections, licenses and certificates required
to be
made or issued with respect to all occupied portions of the Mortgaged Property
and, with respect to the use and occupancy of the same, including but not
limited to certificates of occupancy and fire underwriting certificates,
have
been made or obtained from the appropriate authorities;
(hh) If
the
Mortgaged Property is a condominium unit or a planned unit development
(other
than a de minimis planned unit development), or stock in a cooperative
housing
corporation, such condominium, cooperative or planned unit development
project
meets the eligibility requirements of Xxxxxx Xxx and Xxxxxxx Mac;
(ii) There
is
no pending action or proceeding directly involving the Mortgaged Property
in
which compliance with any environmental law, rule or regulation is an issue;
there is no violation of any environmental law, rule or regulation with
respect
to the Mortgaged Property; and nothing further remains to be done to satisfy
in
full all requirements of each such law, rule or regulation constituting
a
prerequisite to use and enjoyment of said property;
(jj) The
Mortgagor has not notified RWT Holdings requesting relief under the
Servicemembers’ Civil Relief Act, formerly known as the Soldiers’ and Sailors’
Civil Relief Act of 1940, and RWT Holdings has no knowledge of any relief
requested or allowed to the Mortgagor under the Servicemembers’ Civil Relief
Act;
(kk) As
of the
related Closing Date, no Mortgage Loan was in construction or rehabilitation
status or has facilitated the trade-in or exchange of a Mortgaged
Property;
(ll) No
action
has been taken or failed to be taken by RWT Holdings on or prior to the
Closing
Date which has resulted or will result in an exclusion from, denial of,
or
defense to coverage under any insurance policy related to a Mortgage Loan
(including, without limitation, any exclusions, denials or defenses which
would
limit or reduce the availability of the timely payment of the full amount
of the
loss otherwise due thereunder to the insured) whether arising out of actions,
representations, errors, omissions, negligence, or fraud of RWT Holdings,
or for
any other reason under such coverage;
(mm) The
Mortgage Loan was originated by a mortgagee approved by the Secretary of
Housing
and Urban Development pursuant to sections 203 and 211 of the National
Housing
Act, a savings and loan association, a savings bank, a commercial bank,
credit
union, insurance company or similar institution which is supervised and
examined
by a federal or state authority;
(nn) No
Mortgaged Property is subject to a ground lease;
(oo) With
respect to any broker fees collected and paid on any of the Mortgage Loans,
all
broker fees have been properly assessed to the Mortgagor and no claims
will
arise as to broker fees that are double charged and for which the Mortgagor
would be entitled to reimbursement;
(pp) With
respect to any Mortgage Loan as to which an affidavit has been delivered
to the
Purchaser certifying that the original Mortgage Note has been lost or destroyed
and not been replaced, if such Mortgage Loan is subsequently in default,
the
enforcement of such Mortgage Loan will not be materially adversely affected
by
the absence of the original Mortgage Note;
(qq) Each
Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A)
of
the Code and Treasury Regulations Section 1.860G-2(a)(1);
(rr) Except
as
provided in Section 2.07, the Mortgage Note, the Mortgage, the Assignment
of
Mortgage and the other Mortgage Loan Documents set forth in Exhibit A-1
and
required to be delivered on the related Closing Date have been delivered
to the
Purchaser or its designee all in compliance with the specific requirements
of
the GMAC-RWT Agreement. With respect to each Mortgage Loan, RWT Holdings
is in
possession of a complete Mortgage File and Servicing File except for such
documents as have been delivered to the Purchaser or its designee;
(ss) All
information supplied by, on behalf of, or concerning the Mortgagor is true,
accurate and complete and does not contain any statement that is or will
be
inaccurate or misleading in any material respect;
(tt) There
does not exist on the related Mortgage Property any hazardous substances,
hazardous wastes or solid wastes, as such terms are defined in the Comprehensive
Environmental Response Compensation and Liability Act, the Resource Conservation
and Recovery Act of 1976, or other federal, state or local environmental
legislation;
(uu) All
disclosure materials required by applicable law with respect to the making
of
fixed rate and adjustable rate mortgage loans have been received by the
borrower;
(vv) No
Mortgage Loan had a Loan-to-Value Ratio at the time of origination of more
than
95%;
(ww) None
of
the Mortgage Loans are subject to the Home Ownership and Equity Protection
Act
of 1994 or any comparable state law and no mortgage loans is a “high cost” or
“covered” mortgage loan, as applicable (as such terms are defined in the then
current Standard and Poor’s LEVELS Glossary which is now Version 6.0, Appendix
E);
(xx) None
of
the proceeds of the Mortgage Loan were used to finance single-premium credit
insurance policies;
(yy) Any
principal advances made to the Mortgagor prior to the Closing Date have
been
consolidated with the outstanding principal amount secured by the Mortgage,
and
the secured principal amount, as consolidated, bears a single interest
rate and
single repayment term. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having first lien priority by
a title
insurance policy, an endorsement to the policy insuring the mortgagee’s
consolidated interest or by other title evidence acceptable to Xxxxxx Xxx
and
Xxxxxxx Mac. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(zz) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
(aaa) No
Mortgage Loan is a balloon loan;
(bbb) With
respect to each MERS Mortgage Loan, a MIN has been assigned by MERS and
such MIN
is accurately provided on the Mortgage Loan Schedule. The related assignment
of
Mortgage to MERS has been duly and properly recorded;
(ccc) With
respect to each MERS Mortgage Loan, RWT Holdings has not received any notice
of
liens or legal actions with respect to such Mortgage Loan and no such notices
have been electronically posted by MERS;
(ddd) None
of
the Mortgaged
Properties are manufactured housing;
(eee) With
respect to each Mortgage Loan, GreenPoint has fully and accurately furnished
complete information on the related borrower credit files to Equifax, Experian
and Trans Union Credit Information Company, in accordance with the Fair
Credit
Reporting Act and its implementing regulations;
(fff) GreenPoint
has complied with all applicable anti-money laundering laws and regulations,
including without limitation the USA Patriot Act of 2001 (collectively,
the
“Anti-Money Laundering Laws”); GreenPoint has established an anti-money
laundering compliance program as required by the Anti-Money Laundering
Laws, has
conducted the requisite due diligence in connection with the origination
of each
Mortgage Loan for purposes of the Anti-Money Laundering Laws, including
with
respect to the legitimacy of the applicable Mortgagor and the origin of
the
assets used by the said Mortgagor to purchase the property in question,
and
maintains, and will maintain, sufficient information to identify the applicable
Mortgagor for purposes of the Anti-Money Laundering Laws;
(ggg) Each
Mortgage Loan at the time it was made complied in all material respects
with
applicable local, state, and federal laws, including, but not limited to,
all
applicable predatory and abusive lending laws;
(hhh) No
Mortgage Loan is “high cost” as defined by any applicable federal, state, or
local predatory or abusive lending law. Any breach of this representation
shall
be deemed to materially and adversely affect the value of the Mortgage
Loan and
shall require a repurchase of the affected Mortgage Loan;
(iii) No
Mortgage Loan was originated on or after October 1, 2002 and prior to March
7,
2003, which is secured by property located in the State of Georgia. No
Mortgage
Loan was originated on or after March 7, 2003 which is a “high cost home loan”
as defined under the Georgia Fair Lending Act. Any breach of this representation
shall be deemed to materially and adversely affect the value of the Mortgage
Loan and shall require a repurchase of the affected Mortgage Loan;
(jjj) No
Mortgage Loan which is secured by property located in the State of New
Jersey is
a “High-Cost Home Loan” as defined in the New Jersey Home Ownership Act, which
became effective November 27, 2003;
(kkk) No
Mortgage Loan which is secured by property located in the State of New
Mexico is
a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act,
which became effective January 1, 2004;
(lll) No
Mortgage Loan which is secured by property located in the State of Kentucky
is a
“High-Cost Home Loan” as defined in the Kentucky House Xxxx 287, which became
effective June 24, 2003;
(mmm)
No
Mortgage Loan which is secured by property located in the Commonwealth
of
Massachusetts is a "High Cost Home Mortgage Loan" as defined in the
Massachusetts Predatory Home Loan Practices Act (Mass. Xxx. Laws ch. 183C)
which
became effective November 7, 2004;
(nnn)
No
Mortgage Loan that is secured by property located in the State of Illinois
is a
"High-Risk Home Loan" as defined in the Illinois High Risk Home Loan Act
effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et seq.); and none
of the
Mortgage Loans that are secured by property located in the State of Illinois
are
in violation of the provisions of the Illinois Interest Act (815 Ill. Comp.
Stat. 205/1 et. seq.); and
(ooo) No
Mortgage Loan that is secured by property located in the State of Indiana
is a
"High Cost Home Loan" as defined in Indiana’s Home Loan Practices Act (I.C.
24-9), which became effective January 1, 2005.
V.
|
Mortgage
Loans Purchased under the Master Mortgage Loan Purchase Agreement
dated as
of August 1, 2001 between Redwood Trust, Inc. (“Redwood Trust”) and Xxxxxx
Xxxxxxx Credit Corporation (formerly Xxxxxx Xxxxxxx Xxxx Xxxxxx
Credit
Corporation) (the “Seller/Servicer”) (the “Xxxxxx
Agreement”).
|
With
respect to each Mortgage Loan, RWT Holdings hereby makes the following
representations and warranties. Such representations and warranties speak
as of
the Closing Date with respect to Pledged Mortgages (as such capitalized
terms
are defined in the Pooling and Servicing Agreement), unless otherwise indicated.
Capitalized terms are as defined in this Schedule A or in the Xxxxxx
Agreement.
(i) The
information set forth in the Mortgage Loan Schedule is true and correct
in all
material respects;
(ii) As
of the Closing Date, the Mortgage Loan is not delinquent more than 29 days,
the
Mortgage Loan has never been delinquent for more than 59 days and the Mortgage
Loan has not been dishonored. To RWT Holdings' knowledge, there are no
material
defaults under the terms of the Mortgage Loan. The Seller/Servicer has
not
advanced funds, or induced or, solicited any advance of funds from a party
other
than the owner of the Mortgaged Property subject to the Mortgage, directly
or
indirectly, for the payment of any amount required by the Mortgage
Loan;
(iii) With
respect to those Mortgage Loans which are required to deposit funds into
an
escrow account for payment of taxes, assessments, insurance premiums and
similar
items as they become due, all escrow deposits have been collected, are
under the
control of the Seller/Servicer, and have been applied by the Seller/Servicer
to
the payment of such items in a timely fashion, in accordance with such
Mortgage.
There exist no deficiencies in connection therewith for which customary
arrangements for repayment thereof have not been met. With respect to those
Mortgage Loans for which escrow deposits are not required, to RWT Holdings'
knowledge, there are no delinquent taxes or other outstanding charges affecting
the related Mortgaged Property which constitute a lien on the related Mortgaged
Property;
(iv) The
terms of the Mortgage Note and the Mortgage have not been impaired, waived,
altered or modified in any respect, except by written instruments contained
in
the Trustee Mortgage File, approved, if necessary, by the insurer under
any
Primary Mortgage Insurance Policy and recorded in all places necessary
to
maintain the first priority of the lien, the substance of which waiver,
alteration or modification is reflected on the Mortgage Loan Schedule.
No
Mortgagor has been released, in whole or in part, except by operation of
law or
in connection with an assumption agreement which assumption agreement is
part of
the Trustee Mortgage File and the terms of which are reflected in the Mortgage
Loan Schedule;
(v) Neither
the Mortgage Note nor the Mortgage is subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, nor will
the
operation of any of the terms of the Mortgage Note and the Mortgage, or
the
exercise of any right thereunder, render the Mortgage unenforceable, in
whole or
in part, or subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury and, to RWT Holdings' knowledge,
no such
right of recission, set-off, counterclaim or defense has been asserted
by any
Person with respect thereto;
(vi) All
buildings upon the Mortgaged Property are required to be insured by a generally
acceptable insurer against loss by fire, hazards of extended coverage and
such
other hazards as are customarily included in extended coverage in the area
where
the Mortgaged Property is located, pursuant to standard property insurance
policies in compliance with the Seller/Servicer’s policies as from time to time
in effect. On the date of origination, all such property policies were
in
effect, and contained a standard mortgage clause naming the Seller/Servicer
or
the originator of the Mortgage Loan and their respective successors in
interest
as mortgagee; to the knowledge of RWT Holdings, such policy and clause
or a
replacement is in effect and, to RWT Holdings' knowledge, all premiums
due
thereon have been paid. If the Mortgaged Property is located in an area
identified by the Federal Emergency Management Agency as having special
flood
hazards under the National Flood Insurance Act of 1994, as amended, such
Mortgaged Property is covered by flood insurance in the amount required
under
the National Flood Insurance Act of 1994. The Mortgage obligates the Mortgagor
to maintain such insurance and authorizes the holder of the Mortgage to
maintain
such insurance at Mortgagor’s cost and expense should the Mortgagor fail to do
so and to seek reimbursement therefor from the Mortgagor;
(vii) At
the time of origination of such Mortgage Loan and thereafter, all requirements
of any federal or state law, including usury, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit opportunity
or
disclosure laws required to be complied with by the Seller/Servicer as
the
originator of the Mortgage Loan and applicable to the Mortgage Loan have
been
complied with in all material respects;
(viii) The
Mortgage has not been satisfied as of the Closing Date, canceled or
subordinated, in whole, or rescinded, and the Mortgaged Property has not
been
released from the lien of the Mortgage, in whole or in part (except for
a
release that does not materially impair the security of the Mortgage Loan
or a
release the effect of which is reflected in the Loan-to-Value Ratio for
the
Mortgage Loan as set forth in the Mortgage Loan Schedule);
(ix) Ownership
of the Mortgaged Property is held in fee simple or leasehold estate. With
respect to Mortgage Loans that are secured by a leasehold estate: (i) the
lease
is valid, in full force and effect, and conforms to all of Xxxxxx Mae’s
requirements for leasehold estates; (ii) all rents and other payments due
under
the lease have been paid; (iii) the lessee is not in default under any
provision
of the lease; (iv) the term of the lease exceeds the maturity date of the
related Mortgage Loan by at least five (5) years; and (v) the terms of
the lease
provide a Mortgagee with an opportunity to cure any defaults. Except as
permitted by the fourth sentence of this paragraph (ix), the Mortgage is
a
valid, subsisting and enforceable first lien on the Mortgaged Property
securing
the Mortgage Note’s original principal balance. Such lien is free and clear of
all adverse claims, liens and encumbrances having priority over the first
lien
of the Mortgage, subject only to (1) the lien of non-delinquent current
real
property taxes and assessments not yet due and payable, (2) liens, covenants,
conditions and restrictions, rights of way, easements and other matters
reflected in the public record as of the date of recording which are acceptable
to mortgage lending institutions generally, or which are referred to
(specifically or generally) in the lender’s title insurance policy delivered to
the originator of the Mortgage Loan and either (A) which are referred to
or
otherwise considered in such title insurance policy or the appraisal made
for
the originator of the Mortgage Loan, or (B) which do not in the aggregate
adversely affect the appraised value of the Mortgaged Property as set forth
in
such appraisal, and (3) other matters to which like properties are commonly
subject which do not in the aggregate materially interfere with the benefits
of
the security intended to be provided by the Mortgage or the use, enjoyment,
value or marketability of the related Mortgaged Property. With respect
to each
Cooperative Loan, the security instruments create a valid, enforceable
and
subsisting first priority security interest in the Cooperative Apartment
securing the related Mortgage Note subject only to (a) the lien of the
related
cooperative for unpaid assessments representing the Mortgagor’s pro rata share
of payments for a blanket mortgage, if any, current and future real property
taxes, insurance premiums, maintenance fees and other assessments, and
(b) other
matters to which the collateral is commonly subject which do not materially
interfere with the benefits of the security intended to be provided; provided,
however, that the related proprietary lease for the Cooperative Apartment
may be
subordinated or otherwise subject to the lien of a Mortgage on the cooperative
building;
(x) The
Mortgage Note and the related Mortgage are genuine and are in proper form
to
constitute a legal, valid and binding obligation of the maker thereof in
all
material respects, enforceable in accordance with its terms, subject to
bankruptcy, insolvency and other laws of general application affecting
the
rights of creditors, and general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law),
and
assuming that the maker thereof had the legal capacity to enter into the
Mortgage Loan and to execute and deliver the Mortgage Note and the Mortgage.
The
Mortgage Note and the Mortgage have been duly and properly executed by
such
parties. An obligor of the debt evidenced by the Mortgage Note is a natural
person. The proceeds of the Mortgage Loan have been fully disbursed and
there is
no requirement for future advances thereunder, and any and all requirements
in
the Mortgage as to completion of any on-site or off-site improvements and
as to
disbursements of any escrow funds therefor have been complied with;
(xi) RWT
Holdings has good title to, and the full right to transfer and sell, the
Mortgage Loan and the Mortgage Note free and clear of any encumbrance,
equity,
lien, pledge, charge, claim or security interest including, to the knowledge
of
RWT Holdings, any lien, claim or other interest arising by operation of
law;
(xii) The
Mortgage Loan is covered by either an ALTA lender’s title insurance policy or
other generally acceptable form of policy or insurance acceptable to Xxxxxx
Xxx
or Xxxxxxx Mac, issued by a title insurer acceptable to Xxxxxx Mae or Xxxxxxx
Mac and qualified to do business in the jurisdiction where the Mortgaged
Property is located, insuring (subject to the exceptions contained in paragraph
(ix) (1), (2) and (3) above) to the Seller/Servicer, its successors and
assigns,
the first priority lien of the Mortgage in the original principal amount
of the
Mortgage Loan. The Seller/Servicer is the sole insured of such lender’s title
insurance policy, such title insurance policy has been duly and validly
endorsed
to the Trustee (as defined in the Pooling and Servicing Agreement) or the
assignment to such Trustee of the Seller/Servicer’s interest does not require
the consent of or notification to the insurer and such lender’s title insurance
policy is in full force and effect and will be in full force and effect
upon the
consummation of the transactions contemplated by the Xxxxxx Agreement.
To RWT
Holdings' knowledge, no claims have been made under such lender’s title
insurance policy, and no prior holder of the related Mortgage has done,
by act
or omission, anything which would impair the coverage of such lender’s title
insurance policy;
(xiii) There
is no default, breach, violation or event of acceleration existing under
the
Mortgage or the related Mortgage Note and, to RWT Holdings' 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
permitting acceleration, except for any Mortgage Loan Payment which is
not late
by more than 30 days, and the Seller/Servicer has not waived any default,
breach, violation or event permitting acceleration;
(xiv) To
RWT Holdings' knowledge, all material improvements subject to the Mortgage,
lie
wholly within the boundaries and building restrictions lines of the Mortgaged
Property (and wholly within the project with respect to a condominium unit)
and
no improvements on adjoining properties materially encroach upon the Mortgaged
Property, except those which are insured against by the title insurance
policy
referred to in paragraph (xii) above and all improvements on the property
comply
with all applicable zoning and subdivision laws and ordinances;
(xv) The
Mortgage Loan (unless designated as originated by others on any Mortgage
Loan
Schedule) was originated by the Seller/Servicer (or the corporate predecessor
of
the Seller/Servicer), and at the time of each such origination of such
Mortgage
Loan the Seller/Servicer was (unless designated as “originated prior to HUD
approval” on any Mortgage Loan Schedule) a mortgagee approved by the Secretary
of Housing and Urban Development (the “Secretary”) pursuant to Sections 203 and
211 of the National Housing Act. Each such Mortgage Loan was underwritten
in
accordance with the Underwriting Guide as in effect at the time of origination,
except to the extent the Seller/Servicer believed as such time that a variance
from such Underwriting Guide was warranted by compensating factors. The
Mortgage
contains the usual and customary provision of the Seller/Servicer, if any,
in
the applicable jurisdiction at the time of origination for the acceleration
of
the payment of the unpaid principal balance of the Mortgage Loan if the
related
Mortgaged Property is sold without the prior consent of the Mortgagee
thereunder;
(xvi) The
Mortgaged Property at origination or acquisition was and, to RWT Holdings'
knowledge, is free of material damage and waste and at origination there
was,
and to RWT Holdings' knowledge there is, no proceeding pending for the
total or
partial condemnation thereof;
(xvii) The
related Mortgage contains customary and enforceable provisions such as
to render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security provided
thereby;
(xviii) If
the Mortgage constitutes a deed of trust, a trustee, duly qualified if
required
under applicable law to act as such, has been properly designated and currently
so serves as named in the Mortgage, and no fees or expenses are or will
become
payable to the trustee under the deed of trust, except in connection with
a
trustee’s sale or attempted sale after default by the Mortgagor;
(xix) With
respect to the Mortgage Loan, there is an appraisal on a Xxxxxx Xxx-approved
form (or a narrative residential appraisal) of the related Mortgaged Property
that conforms to the applicable requirements of the Financial Institutions
Reform Recovery and Enforcement Act of 1989 and that was signed prior to
the
approval of such Mortgage Loan application by a qualified appraiser, appointed
by the Seller/Servicer or the originator of such Mortgage Loan, as appropriate,
who has no interest, direct or indirect, in the Mortgaged Property or in
any
loan made on the security thereof, and whose compensation is not affected
by the
approval or disapproval of such Mortgage Loan;
(xx) The
Mortgage Loan contains no “subsidized buydown” or graduated payment
features;
(xxi) The
Mortgaged Property has a single-family (one to four-unit) dwelling residence
erected thereon, or is an individual condominium unit in a condominium,
or a
Cooperative Apartment or an individual unit in a planned unit development
or in
a de
minimis planned
unit development as defined by Xxxxxx Mae. No such residence is a mobile
home or
a manufactured dwelling which is not permanently attached to the
land;
(xxii) Except
as set forth on the Mortgage Loan Schedule the Mortgage Loan is not a Converted
Mortgage Loan. The Mortgage Loan does not provide for negative
amortization;
(xxiii) The
Mortgage Loan does not have an original term in excess of thirty (30) years
and
one month;
(xxiv) If
the Mortgage Loan is a Cooperative Loan, (a) there is no provision in any
proprietary lease which requires the Mortgagor to offer for sale the cooperative
shares owned by such Mortgagor first to the cooperative, (b) there is no
prohibition in the proprietary lease against pledging the cooperative shares
or
assigning the proprietary lease, (c) to RWT Holdings' knowledge, the Cooperative
Apartment is lawfully occupied under applicable law, and (d) to RWT Holdings'
knowledge, all inspections, licenses and certificates required to be made
or
issued with respect to all occupied portions of the Cooperative Apartment
and
the related project have been made or obtained from the appropriate
authorities;
(xxv) There
has been no fraud, material misrepresentation or deceit on the part of
any
Mortgagor or any third party in connection with the Mortgage Loan (including
the
application, processing, appraisal and origination) which would cause a
material
economic loss to the owner of the Mortgage Loan, including, but not limited
to,
material misrepresentation of such Mortgagor’s income, funds on deposit or
employment;
(xxvi) The
origination, collection and other servicing practices used by the
Seller/Servicer with respect to the Mortgage Loans are in compliance with
all
material requirements of applicable laws and regulations;
(xxvii) The
Seller/Servicer shall cause to be maintained for each Mortgage Loan primary
hazard insurance with extended coverage on the related mortgage property
in an
amount equal to the lessor of (i) full replacement value of improvements
and
(ii) the outstanding principal balance;
(xxviii) RWT
Holdings has no knowledge of any homestead or other exemption available
to the
mortgagor which would interfere with the right to sell the mortgage property
at
trustee’s sale or the right to foreclose the mortgage;
(xxix) At
the time of origination of such Mortgage Loan, and thereafter, all material
requirements of any federal, state or local law including usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity or disclosure laws required to be complied with
by the
Seller/Servicer as the originator of the Mortgage Loan have been complied
with
in all material respects;
(xxx) The
Additional Collateral Mortgage Loans are insured under the terms and provisions
of the Surety Bond subject to the limitations set forth therein. The
Seller/Servicer will deliver to the Surety Bond issuer an “Assignment and Notice
of Transfer” in the form of Attachment to the Surety Bond, or any other similar
instrument required to be delivered under the Surety Bond, executed by
the
Seller/Servicer and RWT Holdings, and that all other requirements for
transferring coverage under the Surety Bond in respect of such Additional
Collateral Mortgage Loans to the Trustee (as defined in the Pooling and
Servicing Agreement) shall be complied with;
(xxxi)
No
Mortgage Loan is covered by the Home Ownership and Equity Protection Act
of 1994
and no Mortgage Loan is “high cost” as defined by any applicable federal, state
or local predatory or abusive lending law, and no mortgage loan is a “high cost”
or “covered” mortgage loan, as applicable (as such terms are defined in the then
current Standard and Poor’s LEVELS Glossary which is now Version 6.0, Appendix
E);
(xxxii) Each
Mortgage Loan at the time it was made complied in all material respects
with
applicable local, state and federal laws, including, but not limited to,
all
applicable predatory or abusive lending laws;
(xxxiii)
None
of
the proceeds of any Mortgage Loan were used to finance the purchase of
single
premium credit insurance policies;
(xxxiv) No
Mortgage Loan contains prepayment penalties that extend beyond five years
after
the date of origination;
(xxxv) Each
Mortgage Loan would be a “qualified mortgage” within the meaning of Section
860G(a)(3)(A) of the Code and Treasury Regulations Section 1.860G-2(a)(1)
if
transferred to a REMIC on its startup date in exchange for the regular
or
residual interests of the REMIC; and
(xxxvi) There
were no
adverse selection procedures used in selecting the Mortgage Loan from among
the
residential mortgage loans which were available for inclusion in the Mortgage
Loans.
VI.
|
Mortgage
Loans Purchased under the Master Mortgage Loan Purchase Agreement
dated as
of August 1, 2002 between RWT Holdings, Inc. (“RWT Holdings”) and Xxxxxx
Xxxxxxx Credit Corporation (formerly
Xxxxxx Xxxxxxx Xxxx Xxxxxx Credit Corporation)
(the “Seller/Servicer”) (the “Xxxxxx-RWT
Agreement”).
|
With
respect to each Mortgage Loan, RWT Holdings hereby makes the following
representations and warranties. Such representations and warranties speak
as of
the Closing Date with respect to the Mortgage Loans (as such capitalized
terms
are defined in the Pooling and Servicing Agreement), unless otherwise indicated.
Capitalized terms are as defined in this Schedule A or in the Xxxxxx-RWT
Agreement.
(i) The
information set forth in the Mortgage Loan Schedule is true and correct
in all
material respects;
(ii) The
information provided to the rating agencies, including the loan level detail,
is
true and correct according to the rating agency requirements;
(iii) As
of the Closing Date, the Mortgage Loan is not delinquent more than 29 days,
the
Mortgage Loan has never been delinquent for more than 59 days and the Mortgage
Loan has not been dishonored. There are no material defaults under the
terms of
the Mortgage Loan. The Seller/Servicer has not advanced funds, or induced
or,
solicited any advance of funds from a party other than the owner of the
Mortgaged Property subject to the Mortgage, directly or indirectly, for
the
payment of any amount required by the Mortgage Loan;
(iv) With
respect to those Mortgage Loans which are required to deposit funds into
an
escrow account for payment of taxes, assessments, insurance premiums and
similar
items as they become due, all escrow deposits have been collected, are
under the
control of the Seller/Servicer, and have been applied by the Seller/Servicer
to
the payment of such items in a timely fashion, in accordance with such
Mortgage.
There exist no deficiencies in connection therewith for which customary
arrangements for repayment thereof have not been met. With respect to those
Mortgage Loans for which escrow deposits are not required, there are no
delinquent taxes or other outstanding charges affecting the related Mortgaged
Property which constitute a lien on the related Mortgaged Property;
(v) The
terms of the Mortgage Note and the Mortgage have not been impaired, waived,
altered or modified in any respect, except by written instruments contained
in
the Trustee Mortgage File, approved, if necessary, by the insurer under
any
Primary Mortgage Insurance Policy and recorded in all places necessary
to
maintain the first priority of the lien, the substance of which waiver,
alteration or modification is reflected on the Mortgage Loan Schedule.
No
Mortgagor has been released, in whole or in part, except by operation of
law or
in connection with an assumption agreement which assumption agreement is
part of
the Trustee Mortgage File and the terms of which are reflected in the Mortgage
Loan Schedule;
(vi) Neither
the Mortgage Note nor the Mortgage is subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, nor will
the
operation of any of the terms of the Mortgage Note and the Mortgage, or
the
exercise of any right thereunder, render the Mortgage unenforceable, in
whole or
in part, or subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury and no such right of rescission,
set-off, counterclaim or defense has been asserted by any Person with respect
thereto;
(vii) All
buildings upon the Mortgaged Property are required to be insured by a generally
acceptable insurer against loss by fire, hazards of extended coverage and
such
other hazards as are customarily included in extended coverage in the area
where
the Mortgaged Property is located, pursuant to standard property insurance
policies in compliance with the Seller/Servicer’s policies as from time to time
in effect. On the date of origination, all such property policies were
in
effect, and contained a standard mortgage clause naming the Seller/Servicer
or
the originator of the Mortgage Loan and their respective successors in
interest
as mortgagee; such policy and clause or a replacement is in effect and
all
premiums due thereon have been paid. If the Mortgaged Property is located
in an
area identified by the Federal Emergency Management Agency as having special
flood hazards under the National Flood Insurance Act of 1994, as amended,
such
Mortgaged Property is covered by flood insurance in the amount required
under
the National Flood Insurance Act of 1994. The Mortgage obligates the Mortgagor
to maintain such insurance and authorizes the holder of the Mortgage to
maintain
such insurance at Mortgagor’s cost and expense should the Mortgagor fail to do
so and to seek reimbursement therefor from the Mortgagor;
(viii) At
the time of origination of such Mortgage Loan and thereafter, all requirements
of any federal or state law, including usury, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit opportunity
or
disclosure laws required to be complied with by the Seller/Servicer as
the
originator of the Mortgage Loan and applicable to the Mortgage Loan have
been
complied with in all material respects;
(ix) The
Mortgage has not been satisfied as of the Closing Date, canceled or
subordinated, in whole, or rescinded, and the Mortgaged Property has not
been
released from the lien of the Mortgage, in whole or in part (except for
a
release that does not materially impair the security of the Mortgage Loan
or a
release the effect of which is reflected in the Loan-to-Value Ratio for
the
Mortgage Loan as set forth in the Mortgage Loan Schedule);
(x) Ownership
of the Mortgaged Property is held in fee simple or leasehold estate. With
respect to Mortgage Loans that are secured by a leasehold estate: (i) the
lease
is valid, in full force and effect, and conforms to all of Xxxxxx Mae’s
requirements for leasehold estates; (ii) all rents and other payments due
under
the lease have been paid; (iii) the lessee is not in default under any
provision
of the lease; (iv) the term of the lease exceeds the maturity date of the
related Mortgage Loan by at least five (5) years; and (v) the terms of
the lease
provide a Mortgagee with an opportunity to cure any defaults. Except as
permitted by the fourth sentence of this paragraph (x), the Mortgage is
a valid,
subsisting and enforceable first lien on the Mortgaged Property securing
the
Mortgage Note’s original principal balance. Such lien is free and clear of all
adverse claims, liens and encumbrances having priority over the first lien
of
the Mortgage, subject only to (1) the lien of non-delinquent current real
property taxes and assessments not yet due and payable, (2) liens, covenants,
conditions and restrictions, rights of way, easements and other matters
reflected in the public record as of the date of recording which are acceptable
to mortgage lending institutions generally, or which are referred to
(specifically or generally) in the lender’s title insurance policy delivered to
the originator of the Mortgage Loan and either (A) which are referred to
or
otherwise considered in such title insurance policy or the appraisal made
for
the originator of the Mortgage Loan, or (B) which do not in the aggregate
adversely affect the appraised value of the Mortgaged Property as set forth
in
such appraisal, and (3) other matters to which like properties are commonly
subject which do not in the aggregate materially interfere with the benefits
of
the security intended to be provided by the Mortgage or the use, enjoyment,
value or marketability of the related Mortgaged Property. With respect
to each
Cooperative Loan, the security instruments create a valid, enforceable
and
subsisting first priority security interest in the Cooperative Apartment
securing the related Mortgage Note subject only to (a) the lien of the
related
cooperative for unpaid assessments representing the Mortgagor’s pro rata share
of payments for a blanket mortgage, if any, current and future real property
taxes, insurance premiums, maintenance fees and other assessments, and
(b) other
matters to which the collateral is commonly subject which do not materially
interfere with the benefits of the security intended to be provided; provided,
however, that the related proprietary lease for the Cooperative Apartment
may be
subordinated or otherwise subject to the lien of a Mortgage on the cooperative
building;
(xi) The
Mortgage Note and the related Mortgage are genuine and are in proper form
to
constitute a legal, valid and binding obligation of the maker thereof in
all
material respects, enforceable in accordance with its terms, subject to
bankruptcy, insolvency and other laws of general application affecting
the
rights of creditors, and general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law),
and
assuming that the maker thereof had the legal capacity to enter into the
Mortgage Loan and to execute and deliver the Mortgage Note and the Mortgage.
The
Mortgage Note and the Mortgage have been duly and properly executed by
such
parties. An obligor of the debt evidenced by the Mortgage Note is a natural
person. The proceeds of the Mortgage Loan have been fully disbursed and
there is
no requirement for future advances thereunder, and any and all requirements
in
the Mortgage as to completion of any on-site or off-site improvements and
as to
disbursements of any escrow funds therefor have been complied with;
(xii) RWT
Holdings has good title to, and the full right to transfer and sell, the
Mortgage Loan and the Mortgage Note free and clear of any encumbrance,
equity,
lien, pledge, charge, claim or security interest including, any lien, claim
or
other interest arising by operation of law;
(xiii) The
Mortgage Loan is covered by either an ALTA lender’s title insurance policy or
other generally acceptable form of policy or insurance acceptable to Xxxxxx
Xxx
or Xxxxxxx Mac, issued by a title insurer acceptable to Xxxxxx Mae or Xxxxxxx
Mac and qualified to do business in the jurisdiction where the Mortgaged
Property is located, insuring (subject to the exceptions contained in paragraph
(x) (1), (2) and (3) above) to the Seller/Servicer, its successors and
assigns,
the first priority lien of the Mortgage in the original principal amount
of the
Mortgage Loan. The Seller/Servicer is the sole insured of such lender’s title
insurance policy, such title insurance policy has been duly and validly
endorsed
to the Trustee (as defined in the Pooling and Servicing Agreement) or the
assignment to such Trustee of the Seller/Servicer’s interest does not require
the consent of or notification to the insurer and such lender’s title insurance
policy is in full force and effect and will be in full force and effect
upon the
consummation of the transactions contemplated by the Xxxxxx-RWT Agreement.
No
claims have been made under such lender’s title insurance policy, and no prior
holder of the related Mortgage has done, by act or omission, anything which
would impair the coverage of such lender’s title insurance policy;
(xiv) 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 permitting acceleration,
except
for any Mortgage Loan Payment which is not late by more than 30 days, and
the
Seller/Servicer has not waived any default, breach, violation or event
permitting acceleration;
(xv) All
material improvements subject to the Mortgage, lie wholly within the boundaries
and building restrictions lines of the Mortgaged Property (and wholly within
the
project with respect to a condominium unit) and no improvements on adjoining
properties materially encroach upon the Mortgaged Property, except those
which
are insured against by the title insurance policy referred to in paragraph
(xiii) above and all improvements on the property comply with all applicable
zoning and subdivision laws and ordinances;
(xvi) The
Mortgage Loan (unless designated as originated by others on any Mortgage
Loan
Schedule) was originated by the Seller/Servicer (or the corporate predecessor
of
the Seller/Servicer), and at the time of each such origination of such
Mortgage
Loan the Seller/Servicer was (unless designated as “originated prior to HUD
approval” on any Mortgage Loan Schedule) a mortgagee approved by the Secretary
of Housing and Urban Development (the “Secretary”) pursuant to Sections 203 and
211 of the National Housing Act. Each such Mortgage Loan was underwritten
in
accordance with the Underwriting Guide as in effect at the time of origination,
except to the extent the Seller/Servicer believed as such time that a variance
from such Underwriting Guide was warranted by compensating factors. The
Mortgage
contains the usual and customary provision of the Seller/Servicer, if any,
in
the applicable jurisdiction at the time of origination for the acceleration
of
the payment of the unpaid principal balance of the Mortgage Loan if the
related
Mortgaged Property is sold without the prior consent of the Mortgagee
thereunder;
(xvii) The
Mortgaged Property at origination or acquisition was and is free of material
damage and waste and at origination there was, and there is, no proceeding
pending for the total or partial condemnation thereof;
(xviii) The
related Mortgage contains customary and enforceable provisions such as
to render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security provided
thereby;
(xix) If
the Mortgage constitutes a deed of trust, a trustee, duly qualified if
required
under applicable law to act as such, has been properly designated and currently
so serves as named in the Mortgage, and no fees or expenses are or will
become
payable to the trustee under the deed of trust, except in connection with
a
trustee’s sale or attempted sale after default by the Mortgagor;
(xx) With
respect to the Mortgage Loan, there is an appraisal on a Xxxxxx Xxx-approved
form (or a narrative residential appraisal) of the related Mortgaged Property
that conforms to the applicable requirements of the Financial Institutions
Reform Recovery and Enforcement Act of 1989 and that was signed prior to
the
approval of such Mortgage Loan application by a qualified appraiser, appointed
by the Seller/Servicer or the originator of such Mortgage Loan, as appropriate,
who has no interest, direct or indirect, in the Mortgaged Property or in
any
loan made on the security thereof, and whose compensation is not affected
by the
approval or disapproval of such Mortgage Loan;
(xxi) The
Mortgage Loan contains no “subsidized buydown” or graduated payment
features;
(xxii) The
Mortgaged Property has a single-family (one to four-unit) dwelling residence
erected thereon, or is an individual condominium unit in a condominium,
or a
Cooperative Apartment or an individual unit in a planned unit development
or in
a de
minimis planned
unit development as defined by Xxxxxx Mae. No such residence is a mobile
home or
a manufactured dwelling which is not permanently attached to the
land;
(xxiii) Except
as set forth on the Mortgage Loan Schedule the Mortgage Loan is not a Converted
Mortgage Loan. The Mortgage Loan does not provide for negative
amortization;
(xxiv) The
Mortgage Loan does not have an original term in excess of thirty (30) years
and
one month;
(xxv) If
the Mortgage Loan is a Cooperative Loan, (a) there is no provision in any
proprietary lease which requires the Mortgagor to offer for sale the cooperative
shares owned by such Mortgagor first to the cooperative, (b) there is no
prohibition in the proprietary lease against pledging the cooperative shares
or
assigning the proprietary lease, (c) the Cooperative Apartment is lawfully
occupied under applicable law, and (d) all inspections, licenses and
certificates required to be made or issued with respect to all occupied
portions
of the Cooperative Apartment and the related project have been made or
obtained
from the appropriate authorities;
(xxviii) There
has been no fraud, material misrepresentation or deceit on the part of
any
Mortgagor or any third party in connection with the Mortgage Loan (including
the
application, processing, appraisal and origination) which would cause a
material
economic loss to the owner of the Mortgage Loan, including, but not limited
to,
material misrepresentation of such Mortgagor’s income, funds on deposit or
employment;
(xxix) The
origination, collection and other servicing practices used by the
Seller/Servicer with respect to the Mortgage Loans are in compliance with
all
material requirements of applicable laws and regulations;
(xxx) The
Seller/Servicer shall cause to be maintained for each Mortgage Loan primary
hazard insurance with extended coverage on the related mortgage property
in an
amount equal to the lessor of (i) full replacement value of improvements
and
(ii) the outstanding principal balance;
(xxix) RWT
Holdings has no knowledge of any homestead or other exemption available
to the
mortgagor which would interfere with the right to sell the mortgage property
at
trustee’s sale or the right to foreclose the mortgage;
(xxx) At
the time of origination of such Mortgage Loan, and thereafter, all material
requirements of any federal, state or local law including usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity or disclosure laws required to be complied with
by the
Seller/Servicer as the originator of the Mortgage Loan have been complied
with
in all material respects;
(xxxi) The
Additional Collateral Mortgage Loans are insured under the terms and provisions
of the Surety Bond subject to the limitations set forth therein. The
Seller/Servicer will deliver to the Surety Bond issuer an “Assignment and Notice
of Transfer” in the form of Attachment to the Surety Bond, or any other similar
instrument required to be delivered under the Surety Bond, executed by
the
Seller/Servicer and RWT Holdings,
and that all other requirements for transferring coverage under the Surety
Bond
in respect of such Additional Collateral Mortgage Loans to the Trustee
(as
defined in the Pooling and Servicing Agreement) shall be complied
with;
(xxxii) RWT
hereby represents and warrants to Purchaser that prior to its assignment
to
Purchaser, RWT had a first priority perfected security interest in each
Trading
Account, or, if necessary to perfect a first priority security interest
in each
asset contained in such Trading Account, a first priority perfected security
interest in each such asset contained in such Trading Account and following
RWT's assignment of the Pledge Agreements and related security interest,
Purchaser has a first priority perfected security interest in each Trading
Account, or, if necessary to perfect a first priority security interest
in each
asset contained in such Trading Account, a
perfected first priority security interest in each such asset contained
in such
Trading Account;
(xxxiii) The
assignment of rights to Purchaser under the Surety Bond, as described herein,
will not result in Purchaser assuming any obligations or liabilities of
RWT with
respect thereto (other than to assist RWT in connection with claims filed
thereunder with respect to the Additional Collateral Mortgage Loans owned
by the
Purchaser);
(xxxiv) With
respect to each Additional Collateral Mortgage Loan sold under the Master
Mortgage Loan Purchase Agreement and Master Servicing Agreement, the following
representations and warranties made under each agreement thereof are hereby
modified as follows:
1) The
terms
of the Additional Collateral Pledge Collateral Agreement related to such
Mortgage Loan have not been impaired, waived, altered or modified in any
material respect, except as specifically set forth in the related Mortgage
Loan
Schedule;
2) Except
as
specifically outlined in the Additional Collateral Pledge Agreement, the
Additional Collateral Pledge Agreement related to such Mortgage Loan are
not
subject to any right of rescission, set-off or defense, including the defense
of
usury, nor will the operation of any of the terms of such Additional Collateral
Agreement, or the exercise of any right thereunder, render such Additional
Collateral Agreement unenforceable, in whole or in part, or subject to
any right
of rescission, set-off or defense, including the defense of usury and no
such
right of rescission, set-off or defense has been asserted with respect
thereto;
and
3) There
is
no default, breach, violation or event of acceleration existing under the
Additional Collateral Pledge Agreement or any other agreements, documents,
or
instruments related to such Mortgage Loan. There is no event that, with
the
lapse of time, the giving of notice, or both, would constitute such a default,
breach, violation or event of acceleration.
(xxxv) No
Mortgage Loan was originated on or after October 1, 2002 and prior to March
7,
2003, which is secured by property located in the State of Georgia. No
Mortgage
Loan was originated on or after March 7, 2003 which is a “high cost home loan”
as defined under the Georgia Fair Lending Act, which became effective October
1,
2002;
(xxxvi)
Each Mortgage Loan at the time it was made complied in all material respects
with applicable local, state, and federal predatory and abusive lending
laws;
(xxxvii)
None of the mortgage loans are High Cost as defined by the applicable local,
state, and federal predatory and abusive lending laws and no mortgage loan
is a
“high cost” or “covered” mortgage loan, as applicable (as such terms are defined
in the then current Standard and Poor’s LEVELS Glossary which is now Version
6.0, Appendix E);
(xxxviii)
No Mortgage Loan which is secured by property located in the State of New
Jersey
is a “High-Cost Home Loan” as defined in the New Jersey Home Ownership Act,
which became effective November 27, 2003;
(xxxix)
No
Mortgage Loan which is secured by property located in the State of New
Mexico is
a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act,
which became effective January 1, 2004;
(xl) No
Mortgage Loan which is secured by property located in the State of Kentucky
is a
“High-Cost Home Loan” as defined in the Kentucky House Xxxx 287, which became
effective June 24, 2003;
(xli) No
Mortgage Loan which is secured by property located in the Commonwealth
of
Massachusetts is a "High Cost Home Mortgage Loan" as defined in the
Massachusetts Predatory Home Loan Practices Act (Mass. Xxx. Laws ch. 183C)
which
became effective November 7, 2004;
(xlii) No
Mortgage Loan that is secured by property located in the State of Illinois
is a
"High-Risk Home Loan" as defined in the Illinois High Risk Home Loan Act
effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et seq.); and none
of the
Mortgage Loans that are secured by property located in the State of Illinois
are
in violation of the provisions of the Illinois Interest Act (815 Ill. Comp.
Stat. 205/1 et. seq.);
(xliii) No
Mortgage Loan that is secured by property located in the State of Indiana
is a
"High Cost Home Loan" as defined in Indiana’s Home Loan Practices Act (I.C.
24-9), which became effective January 1, 2005;
(xliv)
None of the proceeds of any Mortgage Loan were used to finance the purchase
of
single premium credit insurance policies;
(xlv) No
Mortgage Loan contains prepayment penalties that extend beyond five years
after
the date of origination;
(xlvi) Each
Mortgage Loan would be a “qualified mortgage” within the meaning of Section
860G(a)(3)(A) of the Code and Treasury Regulations Section 1.860G-2(a)(1)
if
transferred to a REMIC on its startup date in exchange for the regular
or
residual interests of the REMIC; and
(xlvii) There
were no adverse selection procedures used in selecting the Mortgage Loan
from
among the residential mortgage loans which were available for inclusion
in the
Mortgage Loans.
VII.
|
Master
Mortgage Loan Purchase Agreement between RWT Holdings, Inc. ("RWT")
and
Xxxxxx Xxxxxxx Credit Corporation with Redwood Trust as Guarantor,
dated
November 1, 2006, as modified by the related Acknowledgements
(the “Xxxxxx
Xxxxxxx-RWT Agreement”).
|
With
respect to each Mortgage Loan, RWT Holdings hereby makes the following
representations and warranties. Such representations and warranties speak
as of
the Closing Date with respect to the Mortgage Loans (as such capitalized
terms
are defined in the Pooling and Servicing Agreement), unless otherwise indicated.
Capitalized terms are as defined in this Schedule A or in the Xxxxxx Xxxxxxx-RWT
Agreement.
(i) The
information set forth in the Mortgage Loan Schedule is true and correct
in all
material respects;
(ii) The
information provided to the rating agencies, including the loan level detail,
is
true and correct according to the rating agency requirements;
(iii) As
of the Closing Date, the Mortgage Loan is not delinquent more than 29 days,
the
Mortgage Loan has never been delinquent for more than 59 days and the Mortgage
Loan has not been dishonored. There are no material defaults under the
terms of
the Mortgage Loan. The Seller/Servicer has not advanced funds, or induced
or,
solicited any advance of funds from a party other than the owner of the
Mortgaged Property subject to the Mortgage, directly or indirectly, for
the
payment of any amount required by the Mortgage Loan;
(iv) With
respect to those Mortgage Loans which are required to deposit funds into
an
escrow account for payment of taxes, assessments, insurance premiums and
similar
items as they become due, all escrow deposits have been collected, are
under the
control of the Seller/Servicer, and have been applied by the Seller/Servicer
to
the payment of such items in a timely fashion, in accordance with such
Mortgage.
There exist no deficiencies in connection therewith for which customary
arrangements for repayment thereof have not been met. With respect to those
Mortgage Loans for which escrow deposits are not required, there are no
delinquent taxes or other outstanding charges affecting the related Mortgaged
Property which constitute a lien on the related Mortgaged Property;
(v) The
terms of the Mortgage Note and the Mortgage have not been impaired, waived,
altered or modified in any respect, except by written instruments contained
in
the Trustee Mortgage File, approved, if necessary, by the insurer under
any
Primary Mortgage Insurance Policy and recorded in all places necessary
to
maintain the first priority of the lien, the substance of which waiver,
alteration or modification is reflected on the Mortgage Loan Schedule.
No
Mortgagor has been released, in whole or in part, except by operation of
law or
in connection with an assumption agreement which assumption agreement is
part of
the Trustee Mortgage File and the terms of which are reflected in the Mortgage
Loan Schedule;
(vi) Neither
the Mortgage Note nor the Mortgage is subject to any right of rescission,
set-off, counterclaim or defense, including the defense of usury, nor will
the
operation of any of the terms of the Mortgage Note and the Mortgage, or
the
exercise of any right thereunder, render the Mortgage unenforceable, in
whole or
in part, or subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury and no such right of rescission,
set-off, counterclaim or defense has been asserted by any Person with respect
thereto;
(vii) All
buildings upon the Mortgaged Property are required to be insured by a generally
acceptable insurer against loss by fire, hazards of extended coverage and
such
other hazards as are customarily included in extended coverage in the area
where
the Mortgaged Property is located, pursuant to standard property insurance
policies in compliance with the Seller/Servicer’s policies as from time to time
in effect. On the date of origination, all such property policies were
in
effect, and contained a standard mortgage clause naming the Seller/Servicer
or
the originator of the Mortgage Loan and their respective successors in
interest
as mortgagee; such policy and clause or a replacement is in effect and
all
premiums due thereon have been paid. If the Mortgaged Property is located
in an
area identified by the Federal Emergency Management Agency as having special
flood hazards under the National Flood Insurance Act of 1994, as amended,
such
Mortgaged Property is covered by flood insurance in the amount required
under
the National Flood Insurance Act of 1994. The Mortgage obligates the Mortgagor
to maintain such insurance and authorizes the holder of the Mortgage to
maintain
such insurance at Mortgagor’s cost and expense should the Mortgagor fail to do
so and to seek reimbursement therefor from the Mortgagor;
(viii) At
the time of origination of such Mortgage Loan and thereafter, all requirements
of any federal or state law, including usury, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit opportunity
or
disclosure laws required to be complied with by Seller as the originator
of the
Mortgage Loan and applicable to the Mortgage Loan have been complied with
in all
material respects;
(ix) The
Mortgage has not been satisfied as of the Closing Date, canceled or
subordinated, in whole, or rescinded, and the Mortgaged Property has not
been
released from the lien of the Mortgage, in whole or in part (except for
a
release that does not materially impair the security of the Mortgage Loan
or a
release the effect of which is reflected in the Loan-to-Value Ratio for
the
Mortgage Loan as set forth in the Mortgage Loan Schedule);
(x) Ownership
of the Mortgaged Property is held in fee simple or leasehold estate. With
respect to Mortgage Loans that are secured by a leasehold estate: (i) the
lease
is valid, in full force and effect, and conforms to all of Xxxxxx Mae’s
requirements for leasehold estates; (ii) all rents and other payments due
under
the lease have been paid; (iii) the lessee is not in default under any
provision
of the lease; (iv) the term of the lease exceeds the maturity date of the
related Mortgage Loan by at least five (5) years; and (v) the terms of
the lease
provide a Mortgagee with an opportunity to cure any defaults. Except as
permitted by the fourth sentence of this paragraph (x), the Mortgage is
a valid,
subsisting and enforceable first lien on the Mortgaged Property securing
the
Mortgage Note’s original principal balance. Such lien is free and clear of all
adverse claims, liens and encumbrances having priority over the first lien
of
the Mortgage, subject only to (1) the lien of non-delinquent current real
property taxes and assessments not yet due and payable, (2) liens, covenants,
conditions and restrictions, rights of way, easements and other matters
reflected in the public record as of the date of recording which are acceptable
to mortgage lending institutions generally, or which are referred to
(specifically or generally) in the lender’s title insurance policy delivered to
the originator of the Mortgage Loan and either (A) which are referred to
or
otherwise considered in such title insurance policy or the appraisal made
for
the originator of the Mortgage Loan, or (B) which do not in the aggregate
adversely affect the appraised value of the Mortgaged Property as set forth
in
such appraisal, and (3) other matters to which like properties are commonly
subject which do not in the aggregate materially interfere with the benefits
of
the security intended to be provided by the Mortgage or the use, enjoyment,
value or marketability of the related Mortgaged Property. With respect
to each
Cooperative Loan, the security instruments create a valid, enforceable
and
subsisting first priority security interest in the Cooperative Apartment
securing the related Mortgage Note subject only to (a) the lien of the
related
cooperative for unpaid assessments representing the Mortgagor’s pro rata share
of payments for a blanket mortgage, if any, current and future real property
taxes, insurance premiums, maintenance fees and other assessments, and
(b) other
matters to which the collateral is commonly subject which do not materially
interfere with the benefits of the security intended to be provided; provided,
however, that the related proprietary lease for the Cooperative Apartment
may be
subordinated or otherwise subject to the lien of a Mortgage on the cooperative
building;
(xi) The
Mortgage Note and the related Mortgage are genuine and are in proper form
to
constitute a legal, valid and binding obligation of the maker thereof in
all
material respects, enforceable in accordance with its terms, subject to
bankruptcy, insolvency and other laws of general application affecting
the
rights of creditors, and general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law),
and
assuming that the maker thereof had the legal capacity to enter into the
Mortgage Loan and to execute and deliver the Mortgage Note and the Mortgage.
The
Mortgage Note and the Mortgage have been duly and properly executed by
such
parties. An obligor of the debt evidenced by the Mortgage Note is a natural
person. The proceeds of the Mortgage Loan have been fully disbursed and
there is
no requirement for future advances thereunder, and any and all requirements
in
the Mortgage as to completion of any on-site or off-site improvements and
as to
disbursements of any escrow funds therefor have been complied with;
(xii) RWT
Holdings has good title to, and the full right to transfer and sell, the
Mortgage Loan and the Mortgage Note free and clear of any encumbrance,
equity,
lien, pledge, charge, claim or security interest including, any lien, claim
or
other interest arising by operation of law;
(xiii) The
Mortgage Loan is covered by either an ALTA lender’s title insurance policy or
other generally acceptable form of policy or insurance acceptable to Xxxxxx
Xxx
or Xxxxxxx Mac, issued by a title insurer acceptable to Xxxxxx Mae or Xxxxxxx
Mac and qualified to do business in the jurisdiction where the Mortgaged
Property is located, insuring (subject to the exceptions contained in paragraph
(x) (1), (2) and (3) above) to the Seller/Servicer, its successors and
assigns,
the first priority lien of the Mortgage in the original principal amount
of the
Mortgage Loan. The Seller/Servicer is the sole insured of such lender’s title
insurance policy, such title insurance policy has been duly and validly
endorsed
to the Trustee (as defined in the Pooling and Servicing Agreement) or the
assignment to such Trustee of the Seller/Servicer’s interest does not require
the consent of or notification to the insurer and such lender’s title insurance
policy is in full force and effect and will be in full force and effect
upon the
consummation of the transactions contemplated by the Xxxxxx-RWT Agreement.
No
claims have been made under such lender’s title insurance policy, and no prior
holder of the related Mortgage has done, by act or omission, anything which
would impair the coverage of such lender’s title insurance policy;
(xiv) 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 permitting acceleration,
except
for any Mortgage Loan Payment which is not late by more than 30 days, and
the
Seller/Servicer has not waived any default, breach, violation or event
permitting acceleration;
(xv) All
material improvements subject to the Mortgage, lie wholly within the boundaries
and building restrictions lines of the Mortgaged Property (and wholly within
the
project with respect to a condominium unit) and no improvements on adjoining
properties materially encroach upon the Mortgaged Property, except those
which
are insured against by the title insurance policy referred to in paragraph
(xiii) above and all improvements on the property comply with all applicable
zoning and subdivision laws and ordinances;
(xvi) The
Mortgage Loan (unless designated as originated by others on any Mortgage
Loan
Schedule) was originated by the Seller/Servicer (or the corporate predecessor
of
the Seller/Servicer), and at the time of each such origination of such
Mortgage
Loan the Seller/Servicer was (unless designated as “originated prior to HUD
approval” on any Mortgage Loan Schedule) a mortgagee approved by the Secretary
of Housing and Urban Development (the “Secretary”) pursuant to Sections 203 and
211 of the National Housing Act. Each such Mortgage Loan was underwritten
in
accordance with the Underwriting Guide as in effect at the time of origination,
except to the extent the Seller/Servicer believed as such time that a variance
from such Underwriting Guide was warranted by compensating factors. The
Mortgage
contains the usual and customary provision of the Seller/Servicer, if any,
in
the applicable jurisdiction at the time of origination for the acceleration
of
the payment of the unpaid principal balance of the Mortgage Loan if the
related
Mortgaged Property is sold without the prior consent of the Mortgagee
thereunder;
(xvii) The
Mortgaged Property at origination or acquisition was and is free of material
damage and waste and at origination there was, and there is, no proceeding
pending for the total or partial condemnation thereof;
(xviii) The
related Mortgage contains customary and enforceable provisions such as
to render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security provided
thereby;
(xix) If
the Mortgage constitutes a deed of trust, a trustee, duly qualified if
required
under applicable law to act as such, has been properly designated and currently
so serves as named in the Mortgage, and no fees or expenses are or will
become
payable to the trustee under the deed of trust, except in connection with
a
trustee’s sale or attempted sale after default by the Mortgagor;
(xx) With
respect to the Mortgage Loan, there is an appraisal on a Xxxxxx Xxx-approved
form (or a narrative residential appraisal) of the related Mortgaged Property
that conforms to the applicable requirements of the Financial Institutions
Reform Recovery and Enforcement Act of 1989 and that was signed prior to
the
approval of such Mortgage Loan application by a qualified appraiser, appointed
by the Seller/Servicer or the originator of such Mortgage Loan, as appropriate,
who has no interest, direct or indirect, in the Mortgaged Property or in
any
loan made on the security thereof, and whose compensation is not affected
by the
approval or disapproval of such Mortgage Loan;
(xxi) The
Mortgage Loan contains no “subsidized buydown” or graduated payment
features;
(xxii) The
Mortgaged Property has a single-family (one to four-unit) dwelling residence
erected thereon, or is an individual condominium unit in a condominium,
or a
Cooperative Apartment or an individual unit in a planned unit development
or in
a de
minimis planned
unit development as defined by Xxxxxx Mae. No such residence is a mobile
home or
a manufactured dwelling which is not permanently attached to the
land;
(xxiii) Except
as set forth on the Mortgage Loan Schedule the Mortgage Loan is not a Converted
Mortgage Loan. The Mortgage Loan does not provide for negative
amortization;
(xxiv) The
Mortgage Loan does not have an original term in excess of thirty (30) years
and
one month;
(xxv) If
the Mortgage Loan is a Cooperative Loan, (a) there is no provision in any
proprietary lease which requires the Mortgagor to offer for sale the cooperative
shares owned by such Mortgagor first to the cooperative, (b) there is no
prohibition in the proprietary lease against pledging the cooperative shares
or
assigning the proprietary lease, (c) the Cooperative Apartment is lawfully
occupied under applicable law, and (d) all inspections, licenses and
certificates required to be made or issued with respect to all occupied
portions
of the Cooperative Apartment and the related project have been made or
obtained
from the appropriate authorities;
(xxxi) There
has been no fraud, material misrepresentation or deceit on the part of
any
Mortgagor or any third party in connection with the Mortgage Loan (including
the
application, processing, appraisal and origination) which would cause a
material
economic loss to the owner of the Mortgage Loan, including, but not limited
to,
material misrepresentation of such Mortgagor’s income, funds on deposit or
employment;
(xxxii) The
origination, collection and other servicing practices used by the
Seller/Servicer with respect to the Mortgage Loans are in compliance with
all
material requirements of applicable laws and regulations;
(xxxiii) The
Seller/Servicer shall cause to be maintained for each Mortgage Loan primary
hazard insurance with extended coverage on the related mortgage property
in an
amount equal to the lessor of (i) full replacement value of improvements
and
(ii) the outstanding principal balance;
(xxix) RWT
Holdings has no knowledge of any homestead or other exemption available
to the
mortgagor which would interfere with the right to sell the mortgage property
at
trustee’s sale or the right to foreclose the mortgage;
(xxx) The
Mortgagor has not notified Seller of, and Seller has no knowledge of, any
relief
requested or allowed to the Mortgagor under the Servicemembers Civil Relief
Act.
(xxxi) No
Mortgage Loan is (a) subject to the provisions of the Homeownership and
Equity
Protections Act of 1994 as amended (“HOEPA”), (b) a “high risk home” mortgage
loan, or predatory” mortgage loan or any other comparable terms, no matter how
defined under any applicable federal, state or local law, (c) subject to
any
comparable federal, state or local statutes or regulations, or any other
statute
or regulation providing for heightened regulatory scrutiny or assignee
liability
to holders of such mortgage loans, or (d) a High Cost Loan or Covered Loan,
as
applicable (as such terms are defined in the current Standard & Poor’s
LEVELS ® Glossary Revised, Appendix E).
(xxxii)
No
predatory, abusive or deceptive lending practices, including, but not limited
to, the extension of credit to a mortgagor without regard for the mortgagor’s
ability to repay the Mortgage Loan and other extension of credit to a mortgagor
which has no tangible net benefit to the mortgagor, were employed by the
Seller
in the origination of the Mortgage Loan.
(xxxiii)
RWT hereby represents and warrants to Purchaser that prior to its assignment
to
Purchaser, RWT had a first priority perfected security interest in each
Trading
Account, or, if necessary to perfect a first priority security interest
in each
asset contained in such Trading Account, a first priority perfected security
interest in each such asset contained in such Trading Account and following
RWT's assignment of the Pledge Agreements and related security interest,
Purchaser has a first priority perfected security interest in each Trading
Account, or, if necessary to perfect a first priority security interest
in each
asset contained in such Trading Account, a perfected first priority security
interest in each such asset contained in such Trading Account;
(xxxiv)
The Additional Collateral Mortgage Loans are insured under the terms and
provisions of the Surety Bond subject to the limitations set forth therein.
The
Seller/Servicer will deliver to the Surety Bond issuer an “Assignment and Notice
of Transfer” in the form of Attachment to the Surety Bond, or any other similar
instrument required to be delivered under the Surety Bond, executed by
the
Seller/Servicer and RWT Holdings,
and that all other requirements for transferring coverage under the Surety
Bond
in respect of such Additional Collateral Mortgage Loans to the Trustee
(as
defined in the Pooling and Servicing Agreement) shall be complied
with;
(xxxv) The
assignment of rights to Purchaser under the Surety Bond, as described herein,
will not result in Purchaser assuming any obligations or liabilities of
RWT with
respect thereto (other than to assist RWT in connection with claims filed
thereunder with respect to the Additional Collateral Mortgage Loans owned
by the
Purchaser);
(xxxvi) With
respect to each Additional Collateral Mortgage Loan sold under the Master
Mortgage Loan Purchase Agreement and Master Servicing Agreement, the following
representations and warranties made under each agreement thereof are hereby
modified as follows:
1) The
terms
of the Additional Collateral Pledge Collateral Agreement related to such
Mortgage Loan have not been impaired, waived, altered or modified in any
material respect, except as specifically set forth in the related Mortgage
Loan
Schedule;
2) Except
as
specifically outlined in the Additional Collateral Pledge Agreement, the
Additional Collateral Pledge Agreement related to such Mortgage Loan are
not
subject to any right of rescission, set-off or defense, including the defense
of
usury, nor will the operation of any of the terms of such Additional Collateral
Agreement, or the exercise of any right thereunder, render such Additional
Collateral Agreement unenforceable, in whole or in part, or subject to
any right
of rescission, set-off or defense, including the defense of usury and no
such
right of rescission, set-off or defense has been asserted with respect
thereto;
and
3) There
is
no default, breach, violation or event of acceleration existing under the
Additional Collateral Pledge Agreement or any other agreements, documents,
or
instruments related to such Mortgage Loan. There is no event that, with
the
lapse of time, the giving of notice, or both, would constitute such a default,
breach, violation or event of acceleration.
(xxxiv) No
Mortgage Loan was originated on or after October 1, 2002 and prior to March
7,
2003, which is secured by property located in the State of Georgia. No
Mortgage
Loan was originated on or after March 7, 2003 which is a “high cost home loan”
as defined under the Georgia Fair Lending Act, which became effective October
1,
2002;
(xxxv)
No
Mortgage Loan which is secured by property located in the State of New
Jersey is
a “High-Cost Home Loan” as defined in the New Jersey Home Ownership Act, which
became effective November 27, 2003;
(xxxvi)
No Mortgage Loan which is secured by property located in the State of New
Mexico
is a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection
Act, which became effective January 1, 2004;
(xxxvii)
No
Mortgage Loan which is secured by property located in the State of Kentucky
is a
“High-Cost Home Loan” as defined in the Kentucky House Xxxx 287, which became
effective June 24, 2003;
(xxxviii) No
Mortgage Loan which is secured by property located in the Commonwealth
of
Massachusetts is a "High Cost Home Mortgage Loan" as defined in the
Massachusetts Predatory Home Loan Practices Act (Mass. Xxx. Laws ch. 183C)
which
became effective November 7, 2004;
(xxxix) No
Mortgage Loan that is secured by property located in the State of Illinois
is a
"High-Risk Home Loan" as defined in the Illinois High Risk Home Loan Act
effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et seq.); and none
of the
Mortgage Loans that are secured by property located in the State of Illinois
are
in violation of the provisions of the Illinois Interest Act (815 Ill. Comp.
Stat. 205/1 et. seq.);
(xl) No
Mortgage Loan that is secured by property located in the State of Indiana
is a
"High Cost Home Loan" as defined in Indiana’s Home Loan Practices Act (I.C.
24-9), which became effective January 1, 2005;
(xli)
None of the proceeds of any Mortgage Loan were used to finance the purchase
of
single premium credit insurance policies;
(xlii)
No
Mortgage Loan contains prepayment penalties that extend beyond five years
after
the date of origination;
(xliii) Each
Mortgage Loan would be a “qualified mortgage” within the meaning of Section
860G(a)(3)(A) of the Code and Treasury Regulations Section 1.860G-2(a)(1)
if
transferred to a REMIC on its startup date in exchange for the regular
or
residual interests of the REMIC;
(xliv) There
were no
adverse selection procedures used in selecting the Mortgage Loan from among
the
residential mortgage loans which were available for inclusion in the Mortgage
Loans; and
(xlv) Each
conventional first lien Mortgage Loan that had a LTV at origination in
excess of
80% will be subject to a Primary Mortgage Insurance Policy, issued by a
qualified insurer, in at least such amount as is required by the Agency.
All
provisions of such Primary Mortgage Insurance Policy have been and are
being
complied with, such policy is in full force and effect, and all premiums
due
thereunder have been paid. Any first lien Mortgage Loan subject to any
such
Primary Mortgage Insurance Policy obligates the Mortgagor thereunder to
maintain
such insurance and to pay all premiums and charges in connection therewith
unless terminable in accordance with the Xxxxxx Xxx and Xxxxxxx Mac guidelines
or applicable law.
VIII.
|
With
Respect to Mortgage Loans purchased under the Mortgage Loan Flow
Purchase,
Sale & Servicing Agreement, dated as of August 1, 2002 (the “PHH
Agreement”), among RWT Holdings, Inc. ("RWT Holdings"), and PHH Mortgage
Corporation (formerly known as Cendant Mortgage Corporation)
(“PHH”) and
Xxxxxx’x Gate Residential Mortgage Trust (formerly known as Cendant
Residential Mortgage Trust) (“Xxxxxx’x Gate”, and together with PHH, the
“Seller/Servicer”), and the Additional Collateral Servicing Agreement
dated as of August 1, 2002, between PHH and RWT Holdings, as
Purchaser
(the “Additional Collateral
Agreement”).
|
With
respect to each Mortgage Loan, RWT Holdings hereby makes the following
representations and warranties. Such representations and warranties speak
as of
the Closing Date with respect to the (as such capitalized terms are defined
in
the Pooling and Servicing Agreement), unless otherwise indicated. Capitalized
terms are as defined in this Schedule A or in the PHH Agreement.
(1) Mortgage
Loan as Described.
Such
Mortgage Loan complies with the terms and conditions set forth in the PHH
Agreement, and all of the information set forth with respect thereto on
the
Mortgage Loan Schedule is true and correct in all material respects, and
the
information provided to the rating agencies, including the loan level detail,
is
true and correct according to the rating agency requirements;
(2) Complete
Mortgage Files.
The
instruments and documents specified in Section
2.02 of
the
PHH Agreement with respect to such Mortgage Loan have been delivered in
compliance with the requirements of Article
II of
the PHH Agreement. PHH is in possession of a Mortgage File respecting such
Mortgage Loan, except for such documents as have been previously delivered
to
the Custodian;
(3) Mortgagee
of Record.
The
Mortgage relating to such Mortgage Loan has been duly recorded in the
appropriate recording office, and the applicable Seller/Servicer is the
mortgagee of record of such Mortgage Loan and the indebtedness evidenced
by the
related Mortgage Note;
(4) Payments
Current.
All
payments required to be made up to and including the Funding Date for such
Mortgage Loan under the terms of the Mortgage Note have been made, such
that
such Mortgage Loan is not delinquent 30 days or more on the Funding Date.
Unless otherwise disclosed in the Offering Materials or the Mortgage Loan
Schedule, there has been no delinquency, exclusive of any period of grace,
in
any payment by the Mortgagor thereunder during the twelve months preceding
the
Funding Date; and, if the Mortgage Loan is a Cooperative Loan, no foreclosure
action or private or public sale under the Uniform Commercial Code has
ever been
threatened or commenced with respect to the Cooperative Loan;
(5) No
Outstanding Charges.
There
are no delinquent taxes, insurance premiums, assessments, including assessments
payable in future installments, or other outstanding charges affecting
the
Mortgaged Property related to such Mortgage Loan;
(6) Original
Terms Unmodified.
The
terms of the Mortgage Note, the Mortgage and the Additional Collateral
Agreement
related to such Mortgage Loan (and the Proprietary Lease and the Pledge
Instruments with respect to each Cooperative Loan,) have not been impaired,
waived, altered or modified in any material respect, except as specifically
set
forth in the related Mortgage Loan Schedule;
(7) No
Defenses.
The
Mortgage Note, the Mortgage and the Additional Collateral Agreement related
to
such Mortgage Loan (and the Acceptance of Assignment and Assumption of
Lease
Agreement related to each Cooperative Loan) are not subject to any right
of
rescission, set-off or defense, including the defense of usury, nor will
the
operation of any of the terms of such Mortgage Note and such Mortgage (or
the
Additional Collateral Agreement), or the exercise of any right thereunder,
render such Mortgage (or the Additional Collateral Agreement) unenforceable,
in
whole or in part, or subject to any right of rescission, set-off or defense,
including the defense of usury and no such right of rescission, set-off
or
defense has been asserted with respect thereto;
(8) Hazard
Insurance.
(a) All
buildings upon the Mortgaged Property related to such Mortgage Loan 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
such
Mortgaged Property is located, pursuant to insurance policies conforming
to the
requirements of either Section
5.10 or
Section
5.11 of
the PHH Agreement. All such insurance policies (collectively, the “hazard
insurance policy”) contain a standard mortgagee clause naming the originator of
such Mortgage Loan, its successors and assigns, as mortgagee. Such policies
are
the valid and binding obligations of the insurer, and all premiums thereon
due
to date have been paid. The related Mortgage obligates the Mortgagor thereunder
to maintain all such insurance at such Mortgagor’s cost and expense, and on such
Mortgagor’s failure to do so, authorizes the holder of such Mortgage to maintain
such insurance at such Mortgagor’s cost and expense and to seek reimbursement
therefor from such Mortgagor; or (b) in the case of a condominium or unit
in a
planned unit development (“PUD”) project that is not covered by an individual
policy, the condominium or PUD project is covered by a “master” or “blanket”
policy and there exists and is in the Seller/Servicer’s Mortgage File a
certificate of insurance showing that the individual unit that secures
the first
mortgage is covered under such policy. The insurance policy contains a
standard
mortgagee clause naming the originator of such Mortgage Loan (and its successors
and assigns), as insured mortgagee. Such policies are the valid and binding
obligations of the insurer, and all premiums thereon have been paid. The
insurance policy provides for advance notice to the Seller/Servicer if
the
policy is canceled or not renewed, or if any other change that adversely
affects
the Seller/Servicer’s interests is made; the certificate includes the types and
amounts of coverage provided, describes any endorsements that are part
of the
“master” policy and would be acceptable pursuant to the FNMA Guide;
(9) Compliance
With Applicable Laws.
All
requirements of any federal, state or local law (including usury, truth
in
lending, real estate settlement procedures, consumer credit protection,
equal
credit opportunity or disclosure laws) applicable to the origination and
servicing of such Mortgage Loan have been complied with in all material
respects;
(10) No
Satisfaction of Mortgage.
The
Mortgage related to such Mortgage Loan has not been satisfied, canceled
or
subordinated, in whole or in part, or rescinded, and the related Mortgaged
Property has not been released from the lien of such Mortgage, in whole
or in
part, nor has any instrument been executed that would effect any such release,
cancellation, subordination or rescission;
(11) Valid
First Lien.
The
Mortgage including any Negative Amortization, related to such Mortgage
Loan is a
valid, subsisting and enforceable perfected first lien on the related Mortgaged
Property, including all improvements on the related Mortgaged Property,
which
Mortgaged Property is free and clear of any encumbrances and liens having
priority over the first lien of the Mortgage subject only to (a) the lien
of
current real estate taxes and special assessments not yet due and payable,
(b)
covenants, conditions and restrictions, rights of way, easements and other
matters of the public record as of the date of recording of such Mortgage
which
are acceptable to mortgage lending institutions generally, are referred
to in
the lender’s title insurance policy and do not adversely affect the market value
or intended use of the related Mortgaged Property, and (c) 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 such Mortgage or the use, enjoyment, or market value of the
related
Mortgaged Property; with respect to each Cooperative Loan, each Acceptance
of
Assignment and Assumption of Lease Agreement creates a valid, enforceable
and
subsisting first security interest in the collateral securing the related
Mortgage Note subject only to (a) the lien of the related Cooperative
Corporation for unpaid assessments representing the obligor’s pro rata share of
the Cooperative Corporation’s payments for its blanket mortgage, current and
future real property taxes, insurance premiums, maintenance fees and other
assessments to which like collateral is commonly subject and (b) other
matters
to which like collateral is commonly subject which do not materially interfere
with the benefits of the security intended to be provided by the Acceptance
of
Assignment and Assumption of Lease Agreement; provided, however, that the
appurtenant Proprietary Lease may be subordinated or otherwise subject
to the
lien of any mortgage on the Cooperative Project;
(12) Validity
of Documents.
The
Mortgage Note and the Mortgage related to such Mortgage Loan (and the Acceptance
of Assignment and Assumption of Lease Agreement with respect to each Cooperative
Loan) 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
general equitable principles (regardless whether such enforcement is considered
in a proceeding in equity or at law);
(13) Valid
Execution of Documents.
All
parties to the Mortgage Note and the Mortgage related to such Mortgage
Loan had
legal capacity to enter into such Mortgage Loan and to execute and deliver
the
related Mortgage Note and the related Mortgage and the related Mortgage
Note and
the related Mortgage have been duly and properly executed by such parties;
with
respect to each Cooperative Loan, all parties to the Mortgage Note and
the
Mortgage Loan had legal capacity to execute and deliver the Mortgage Note,
the
Acceptance of Assignment and Assumption of Lease Agreement, the Proprietary
Lease, the Stock Power, the Recognition Agreement, the Financing Statement
and
the Assignment of Proprietary Lease and such documents have been duly and
properly executed by such parties; each Stock Power (i) has all signatures
guaranteed or (ii) if all signatures are not guaranteed, then such Cooperative
Shares will be transferred by the stock transfer agent of the Cooperative
Corporation if the Seller/Servicer undertakes to convert the ownership
of the
collateral securing the related Cooperative Loan;
(14) Full
Disbursement of Proceeds.
Such
Mortgage Loan has closed and the proceeds of such Mortgage Loan have been
fully
disbursed prior to the Funding Date; provided
that,
with respect to any Mortgage Loan originated within the previous 120 days,
alterations and repairs with respect to the related Mortgaged Property
or any
part thereof may have required an escrow of funds in an amount sufficient
to pay
for all outstanding work within 120 days of the origination of such Mortgage
Loan, and, if so, such funds are held in escrow by the applicable
Seller/Servicer, a title company or other escrow agent;
(15) Ownership.
The
Mortgage Note and the Mortgage related to such Mortgage Loan have not been
assigned, pledged or otherwise transferred by RWT Holdings, in whole or
in part,
and RWT Holdings has good and marketable title thereto, and the RWT Holdings
is
the sole owner thereof (and with respect to any Cooperative Loan, the sole
owner
of the related Acceptance of Assignment and Assumption of Lease Agreement)and
has full right and authority to transfer and sell such Mortgage Loan, and
is
transferring such Mortgage Loan free and clear of any encumbrance, equity,
lien,
pledge, charge, claim or security interest;
(16) Doing
Business.
All
parties that have had any interest in such Mortgage Loan, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) in compliance with any and all applicable
licensing requirements of the laws of the state wherein the related Mortgaged
Property is located;
(17) Title
Insurance.
(a)
Such Mortgage Loan is covered by an ALTA lender’s title insurance policy or
short form title policy acceptable to FNMA and FHLMC (or, in jurisdictions
where
ALTA policies are not generally approved for use, a lender’s title insurance
policy acceptable to FNMA and FHLMC), issued by a title insurer acceptable
to
FNMA and FHLMC and qualified to do business in the jurisdiction where the
related Mortgaged Property is located, insuring (subject to the exceptions
contained in clauses (11)(a) and (b) above) the applicable Seller/Servicer,
its
successors and assigns as to the first priority lien of the related Mortgage
in
the original principal amount of such Mortgage Loan including any Negative
Amortization and in the case of ARM Loans, against any loss by reason of
the
invalidity or unenforceability of the lien resulting from the provisions
of such
Mortgage providing for adjustment to the applicable Note Rate and Monthly
Payment. Additionally, either such lender’s title insurance policy affirmatively
insures that there is ingress and egress to and from the Mortgaged Property
or
the Seller/Servicer warrants that there is ingress and egress to and from
the
Mortgaged Property and the lender’ s title insurance policy affirmatively
insures against encroachments by or upon the related Mortgaged Property
or any
interest therein or any other adverse circumstance that either is disclosed
or
would have been disclosed by an accurate survey. The applicable Seller/Servicer
is the sole insured of such lender’s title insurance policy, and such lender’s
title insurance policy is in full force and effect and will be in full
force and
effect upon the consummation of the transactions contemplated by the PHH
Agreement and will inure to the benefit of RWT Holdings without any further
act.
No claims have been made under such lender’s title insurance policy, neither the
applicable Seller/Servicer, nor any prior holder of the related Mortgage
has
done, by act or omission, anything that would impair the coverage of such
lender’s insurance policy, and there is no act, omission, condition, or
information that would impair the coverage of such lender’s insurance policy;
(b) The mortgage title insurance policy covering each unit mortgage in
a
condominium or PUD project related to such Mortgage Loan meets all requirements
of FNMA and FHLMC;
(18) No
Defaults.
(a)
There is no default, breach, violation or event of acceleration existing
under
the Mortgage, the Mortgage Note, and Additional Collateral Agreement or
any
other agreements, documents, or instruments related to such Mortgage Loan;
(b)
there is no event that, with the lapse of time, the giving of notice, or
both,
would constitute such a default, breach, violation or event of acceleration;
(c)
the Mortgagor(s) with respect to such Mortgage Loan is (1) not in default
under
any other Mortgage Loan or (2) the subject of an Insolvency Proceeding;
(d) no
event of acceleration has previously occurred, and no notice of default
has been
sent, with respect to such Mortgage Loan; (e) in no event has the applicable
Seller/Servicer waived any of its rights or remedies in respect of any
default,
breach, violation or event of acceleration under the Mortgage, the Mortgage
Note, and Additional Collateral Agreement or any other agreements, documents,
or
instruments related to such Mortgage Loan; and (f) with respect to each
Cooperative Loan, there is no default in complying with the terms of the
Mortgage Note, the Acceptance of Assignment and Assumption of Lease Agreement
and the Proprietary Lease and all maintenance charges and assessments (including
assessments payable in the future installments, which previously became
due and
owing) have been paid, and the Seller/Servicer has the right under the
terms of
the Mortgage Note, Acceptance of Assignment and Assumption of Lease Agreement
and Recognition Agreement to pay any maintenance charges or assessments
owed by
the Mortgagor;
(19) No
Mechanics’ Liens.
As of
the date of origination of such Mortgage Loan, there were no mechanics’ or
similar liens, except such liens as are expressly insured against by a
title
insurance policy, or claims that have been filed for work, labor or material
(and no rights are outstanding that under law could give rise to such lien)
affecting the related Mortgaged Property that are or may be liens prior
to, or
equal or coordinate with, the lien of the related Mortgage;
(20) Location
of Improvements; No Encroachments.
As of
the date of origination of such Mortgage Loan, all improvements that were
considered in determining the Appraised Value of the related Mortgaged
Property
lay wholly within the boundaries and building restriction lines of such
Mortgaged Property, and no improvements on adjoining properties encroach
upon
such Mortgaged Property except as permitted under the terms of the FNMA
Guide
and the FHLMC Selling Guide; no improvement located on or part of any Mortgaged
Property is in violation of any applicable zoning law or regulation, and
all
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of such Mortgaged Property, and with respect
to
the use and occupancy of the same, including certificates of occupancy,
have
been made or obtained from the appropriate authorities;
(21) Origination;
Payment Terms.
Principal payments on such Mortgage Loan commenced or will commence no
more than
60 days after funds were disbursed in connection with such Mortgage Loan.
If the interest rate on the related Mortgage Note is adjustable, the adjustment
is based on the Index set forth on the related Mortgage Loan Schedule.
The
related Mortgage Note is payable on the first day of each month in arrears,
in
accordance with the payment terms described on the related Mortgage Loan
Schedule. With respect to any Mortgage Loan subject to Negative Amortization
the
Monthly Payments are sufficient during the period following each Payment
Adjustment Date to fully amortize the outstanding principal balance as
of the
first day of such period (including any Negative Amortization) over the
original
term thereof in accordance with the terms and conditions set forth in the
Mortgage Note;
(22) Due
On
Sale.
Except
as noted otherwise on the Mortgage Loan Schedule, the related Mortgage
contains
the usual and customary “due-on-sale” clause or other similar provision for the
acceleration of the payment of the Unpaid Principal Balance of such Mortgage
Loan if the related Mortgaged Property or any interest therein is sold
or
transferred without the prior consent of the mortgagee thereunder;
(23) Prepayment
Penalty.
Except
as noted otherwise on the Mortgage Loan Schedule, such Mortgage Loan is
not
subject to any Prepayment Penalty; and no Mortgage Loan contains prepayment
penalties that extend beyond five years after the date of
origination;
(24) Mortgaged
Property Undamaged; No Condemnation.
As of
the Funding Date, the related Mortgaged Property (and with respect to a
Cooperative Loan, the related Cooperative Project and Cooperative Unit)
is free
of material damage and waste and there is no proceeding pending for the
total or
partial condemnation thereof;
(25) Customary
Provisions.
The
related Mortgage contains customary and enforceable provisions that render
the
rights and remedies of the holder thereof adequate for the realization
against
the related Mortgaged Property of the benefits of the security provided
thereby,
including, (a) in the case of a Mortgage designated as a deed of trust,
by
trustee’s sale, and (b) in the case of a Mortgage, otherwise by judicial
foreclosure;
(26) Conformance
With Underwriting Standards.
Such
Mortgage Loan was underwritten in accordance with the PHH Guide;
(27) Appraisal.
The
Mortgage File contains an appraisal of the related Mortgaged Property on
forms
and with riders approved by FNMA and FHLMC, signed prior to the approval
of such
Mortgage Loan application by an appraiser, duly appointed by the originator
of
such Mortgage Loan, whose compensation is not affected by the approval
or
disapproval of such Mortgage Loan and who met the minimum qualifications
of FNMA
and FHLMC for appraisers. Each appraisal of the Mortgage Loan was made
in
accordance with the relevant provisions of the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989;
(28) Deeds
of Trust.
If the
related Mortgage constitutes a deed of trust, then a trustee, duly qualified
under applicable law to serve as such, has been properly designated and
currently so serves and is named in such Mortgage, and no fees or expenses
are
or will become payable to the trustee under such deed of trust, except
in
connection with a trustee’s sale after default by the related
Mortgagor;
(29) LTV;
Primary Mortgage Insurance Policy.
Except
with respect to Additional Collateral Mortgage Loans (as defined in Exhibit
11
to the PHH Agreement), if such Mortgage Loan had a Loan-to-Value Ratio
of more
than 80% at origination, such Mortgage Loan is and will be subject to a
Primary
Insurance Policy issued by a Qualified Mortgage Insurer, which insures
the
applicable Seller/Servicer, its successors and assigns and insureds in
the
amount set forth on the Mortgage Loan Schedule; provided that, a Primary
Mortgage Insurance Policy will not be required for any Cooperative Loan
if (i)
the proceeds of such Cooperative Loan were used to purchase a Cooperative
Unit
at the “insider’s price” when the building was converted to a Cooperative
Corporation, (ii) the value of the Cooperative Unit for purposes of establishing
the LTV at origination was such “insider’s price”, (iii) the principal amount of
the Cooperative Loan at origination was not more than 100% of such “insider’s
price” and (iv) the LTV at origination, as calculated using the Appraised Value
at origination, was less than or equal to 80%. All provisions of such Primary
Insurance Policy have been and are being complied with, such policy is
in full
force and effect, and all premiums due thereunder have been paid. Any related
Mortgage subject to any such Primary Insurance Policy (other than a
“lender-paid” Primary Insurance Policy) obligates the Mortgagor thereunder to
maintain such insurance for the time period required by law and to pay
all
premiums and charges in connection therewith. As of the date of origination,
the
Loan-to-Value Ratio of such Mortgage Loan is as specified in the applicable
Mortgage Loan Schedule;
(30) Occupancy.
As of
the date of origination of such Mortgage Loan, the related Mortgaged Property
(or with respect to a Cooperative Loan, the related Cooperative Unit) is
lawfully occupied under applicable law and all inspections, licenses and
certificates required to be made or issued with respect to all occupied
portions
of the Mortgaged Property (or with respect to a Cooperative Loan, the related
Cooperative Unit) and, with respect to the use and occupancy of the same,
including but not limited to certificates of occupancy, have been made
or
obtained from the appropriate authorities;
(31) Supervision
and Examination by a Federal or State Authority.
Each
Mortgage Loan either was (a) closed in the name of the PHH Mortgage, or
(b)
closed in the name of another entity that is either a savings and loan
association, a savings bank, a commercial bank, credit union, insurance
company
or an institution which is supervised and examined by a federal or state
authority, or a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National Housing Act
(a “HUD
Approved Mortgagee”), and was so at the time such Mortgage Loan was originated
(PHH Mortgage or such other entity, the “Originator”) or (c) closed in the name
of a loan broker under the circumstances described in the following sentence.
If
such Mortgage Loan was originated through a loan broker, such Mortgage
Loan met
the Originator’s underwriting criteria at the time of origination and was
originated in accordance with the Originator’s policies and procedures and the
Originator acquired such Mortgage Loan from the loan broker contemporaneously
with the origination thereof. The Mortgage Loans that Bishops’ Gate Residential
Mortgage Trust sold to RWT Holdings were originated by or on behalf of
PHH
Mortgage and subsequently assigned to the Bishops’ Gate Residential Mortgage
Trust;
(32) Adjustments.
All of
the terms of the related Mortgage Note pertaining to interest rate adjustments,
payment adjustments and adjustments of the outstanding principal balance,
if
any, are enforceable and such adjustments will not affect the priority
of the
lien of the related Mortgage; all such adjustments on such Mortgage Loan
have
been made properly and in accordance with the provisions of such Mortgage
Loan;
(33) Insolvency
Proceedings; Soldiers’ and Sailors’ Relief Act.
The
related Mortgagor (1) is not the subject of any Insolvency Proceeding;
and (2)
has not requested any relief allowed to such Mortgagor under the Soldiers’ and
Sailors’ Civil Relief Act of 1940;
(34) FNMA/FHLMC
Documents.
Such
Mortgage Loan was closed on standard FNMA or FHLMC documents or on such
documents otherwise acceptable to them;
(35) Unless
otherwise disclosed in the Offering Materials or the Mortgage Loan Schedule,
no
Mortgage Loan contains provisions pursuant to which Monthly Payments are
(a)
paid or partially paid with funds deposited in any separate account established
by the Seller/Servicer, the Mortgagor, or anyone on behalf of the Mortgagor,
(b)
paid by any source other than the Mortgagor or (c) contains any other similar
provisions which may constitute a “buydown” provision. The Mortgage Loan is not
a graduated payment mortgage loan and the Mortgage Loan does not have a
shared
appreciation or other contingent interest feature;
(36) The
Assignment is in recordable form and is acceptable for recording under
the laws
of the jurisdiction in which the Mortgaged Property is located;
(37) Any
principal advances made to the Mortgagor prior to the Cut-off Date have
been
consolidated with the outstanding principal amount secured by the Mortgage,
and
the secured principal amount, as consolidated, bears a single interest
rate and
single repayment term. The consolidated principal amount does not exceed
the
original principal amount of the Mortgage Loan plus any Negative
Amortization;
(38) Unless
otherwise disclosed in the Offering Materials or the Mortgage Loan Schedule,
no
Mortgage Loan has a balloon payment feature. With respect to any Mortgage
Loan
with a balloon payment feature, the Mortgage Note is payable in Monthly
Payments
based on a thirty year amortization schedule and has a final Monthly Payment
substantially greater than the proceeding Monthly Payment which is sufficient
to
amortize the remaining principal balance of the Mortgage Loan;
(39) If
the
residential dwelling on the Mortgaged Property is a condominium unit or
a unit
in a planned unit development (other than a de minimis planned unit development)
such condominium or planned unit development project meets the eligibility
requirements of the PHH Guide;
(40) No
Mortgage Loan is subject to the provisions of the Homeownership and Equity
Protection Act of 1994;
(41) Unless
otherwise disclosed in the Offering Materials or the Mortgage Loan Schedule,
no
Mortgage Loan was made in connection with (a) the construction or rehabilitation
of a Mortgaged Property or (b) facilitating the trade-in or exchange of
a
Mortgaged Property;
(42) RWT
Holdings has no knowledge of any circumstances or condition with respect
to the
Mortgage, the Mortgage Property (or with respect to a Cooperative Loan,
the
Acceptance of Assignment and Assumption of Lease Agreement, the Cooperative
Unit
or the Cooperative Project), the Mortgagor or the Mortgagor’s credit standing
that can reasonably be expected to cause the Mortgage Loan to be an unacceptable
investment, cause the Mortgage Loan to become delinquent, or adversely
affect
the value of the Mortgage Loan;
(43) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
(44) The
Mortgaged Property is in material compliance with all applicable environmental
laws pertaining to environmental hazards including, without limitation,
asbestos, and neither the Seller/Servicer nor the related Mortgagor, has
received any notice of any violation or potential violation of such
law;
(45) Unless
otherwise disclosed in the Offering Materials or the Mortgage Loan Schedule,
no
Mortgage Loan is subject to negative amortization;
(46) With
respect to each Cooperative Loan, a Cooperative Lien Search has been made
by a
company competent to make the same which company is acceptable to FNMA
and
qualified to do business in the jurisdiction where the Cooperative Unit
is
located;
(47) With
respect to each Cooperative Loan, (i) the terms of the related Proprietary
Lease
is longer than the terms of the Cooperative Loan, (ii) there is no provision
in
any Proprietary Lease which requires the Mortgagor to offer for sale the
Cooperative Shares owned by such Mortgagor first to the Cooperative Corporation,
(iii) there is no prohibition in any Proprietary Lease against pledging
the
Cooperative Shares or assigning the Proprietary Lease and (iv) the Recognition
Agreement is on a form of agreement published by the Aztech Document Systems,
Inc. or includes provisions which are no less favorable to the lender than
those
contained in such agreement;
(48) With
respect to each Cooperative Loan, each original UCC financing statement,
continuation statement or other governmental filing or recordation necessary
to
create or preserve the perfection and priority of the first priority lien
and
security interest in the Cooperative Shares and Proprietary Lease has been
timely and properly made. Any security agreement, chattel mortgage or equivalent
document related to the Cooperative Loan and delivered to the Mortgagor
or its
designee establishes in the Mortgagor a valid and subsisting perfected
first
lien on and security interest in the Mortgaged Property described therein,
and
the Mortgagor has full right to sell and assign the same;
(49) With
respect to each Cooperative Loan, each Acceptance of Assignment and Assumption
of Lease Agreement contains enforceable provisions such as to render the
rights
and remedies of the holder thereof adequate for the realization of the
benefits
of the security provided thereby. The Acceptance of Assignment and Assumption
of
Lease Agreement contains an enforceable provision for the acceleration
of the
payment of the unpaid principal balance of the Mortgage Note in the event
the
Cooperative Unit is transferred or sold without the consent of the holder
thereof;
(50) No
fraud,
error, omission, misrepresentation, or negligence with respect to a Mortgage
Loan has taken place on the part of any person, including without limitation,
the Mortgagor, any appraiser, any builder or developer or any other party
involved in the origination of the Mortgage Loan;
(51) The
Additional Collateral Mortgage Loans are insured under the terms and provisions
of the Surety Bond subject to the limitations set forth therein. All
requirements for transferring coverage under the Surety Bond in respect
of such
Additional Collateral Mortgage Loans to the Trustee (as defined in the
Pooling
and Servicing Agreement) shall be complied with;
(52) No
Mortgage Loan was originated on or after October 1, 2002 and prior to March
7,
2003, which is secured by property located in the State of Georgia. No
Mortgage
Loan was originated on or after March 7, 2003 which is a “high cost home loan”
as defined under the Georgia Fair Lending Act;
(53) Each
Mortgage Loan at the time it was made complied in all material respects
with
applicable local, state, and federal laws, including, but not limited to,
all
applicable predatory and abusive lending laws;
(54) None
of
the mortgage loans are High Cost as defined by the applicable predatory
and
abusive lending laws and no mortgage loan is a “high cost” or “covered” mortgage
loan, as applicable (as such terms are defined in the then current Standard
and
Poor’s LEVELS Glossary which is now Version 6.0, Appendix E);
(55) No
Mortgage Loan which is secured by property located in the State of New
Jersey is
a “High-Cost Home Loan” as defined in the New Jersey Home Ownership Act, which
became effective November 27, 2003;
(56) No
Mortgage Loan which is secured by property located in the State of New
Mexico is
a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act,
which became effective January 1, 2004;
(57) No
Mortgage Loan which is secured by property located in the State of Kentucky
is a
“High-Cost Home Loan” as defined in the Kentucky House Xxxx 287, which became
effective June 24, 2003;
(58) No
Mortgage Loan which is secured by property located in the Commonwealth
of
Massachusetts is a "High Cost Home Mortgage Loan" as defined in the
Massachusetts Predatory Home Loan Practices Act (Mass. Xxx. Laws ch. 183C)
which
became effective November 7, 2004;
(59) No
Mortgage Loan that is secured by property located in the State of Illinois
is a
"High-Risk Home Loan" as defined in the Illinois High Risk Home Loan Act
effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et seq.); and none
of the
Mortgage Loans that are secured by property located in the State of Illinois
are
in violation of the provisions of the Illinois Interest Act (815 Ill. Comp.
Stat. 205/1 et. seq.);
(60) No
Mortgage Loan that is secured by property located in the State of Indiana
is a
"High Cost Home Loan" as defined in Indiana’s Home Loan Practices Act (I.C.
24-9), which became effective January 1, 2005;
(61) No
Mortgage Loan contains prepayment penalties that extend beyond five years
after
the date of origination;
(62) Each
Mortgage Loan would be a “qualified mortgage” within the meaning of Section
860G(a)(3)(A) of the Code and Treasury Regulations Section 1.860G-2(a)(1)
if
transferred to a REMIC on its startup date in exchange for the regular
or
residual interests of the REMIC; and
(63) There
were no
adverse selection procedures used in selecting the Mortgage Loan from among
the
residential mortgage loans which were available for inclusion in the Mortgage
Loans.
IX.
|
Mortgage
Loans Purchased under the Master Mortgage Loan Purchase Agreement
dated as
of April 1, 1998 between RWT Holdings, Inc. (“RWT Holdings” or the
"Seller") and Xxxxxxx Xxxxx Credit Corporation (“Xxxxxxx Xxxxx”) (as
amended or
modified to the date hereof, the “Master Purchase
Agreement”).
|
With
respect to each Mortgage Loan, RWT Holdings hereby makes the following
representations and warranties. Such representations and warranties speak
as of
the Closing Date with respect to the Mortgage Loans (as such capitalized
terms
are defined in the Pooling and Servicing Agreement), unless otherwise indicated.
Capitalized terms are as defined in this Schedule A or in the Master Purchase
Agreement.
(i) The
information set forth in the Mortgage Loan Schedule is true and correct
in all
material respects;
(ii) The
information provided to the rating agencies, including the loan level detail,
is
true and correct according to the rating agency requirements;
(iii) As
of the
related Closing Date, the Mortgage Loan is not delinquent in payment more
than
29 days and the Mortgage Loan has not been dishonored; the Mortgage Loan
has
never been delinquent in payment for more than 59 days and has not more
than
once during the twelve months preceding the Cut-Off Date been delinquent
in
payment for more than 30 days; there are no material defaults under the
terms of
the Mortgage Loan; the Seller has not advanced funds, or induced, solicited
or
knowingly received any advance of funds from a party other than the owner
of the
Mortgaged Property subject to the Mortgage, directly or indirectly, for
the
payment of any amount required by the Mortgage Loan;
(iv) To
the
best of the Seller's knowledge, there are no delinquent taxes or other
outstanding charges affecting the related Mortgaged Property which would
permit
a taxing authority to initiate foreclosure proceedings against the Mortgaged
Property;
(v) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments contained in the
Mortgage
File, the substance of which waiver, alteration or modifi-cation is reflected
on
the Mortgage Loan Schedule. No Mortgagor has been released, in whole or
in part,
except in connec-tion with an assumption agreement which assumption agreement
is
part of the Mortgage File and the terms of which are reflected in the Mortgage
Loan Schedule;
(vi) The
Mortgagor has not asserted that the Mortgage Note and the Mortgage are
subject
to any right of rescission, set-off, counterclaim or defense, including
the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note and the Mortgage, or the exercise of any right thereunder, render
the
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of
usury and
to the best of the Seller's knowledge, no such right of rescission, set-off,
counterclaim or defense has been asserted by any Person other than the
obligor
with respect thereto;
(vii) Pursuant
to the terms of the Mortgage, all buildings or other improvements upon
the
Mortgaged Property are insured by a generally acceptable insurer against
loss by
fire, hazards of extended coverage and such other hazards as are customary
in
the area where the Mortgaged Property is located. If required by the Flood
Disaster Protection Act of 1973, as amended, the Mortgage Loan is covered
by a
flood insurance policy meeting the requirements of the current guidelines
of the
Federal Insurance Administration. All individual insurance policies contain
a
standard mortgagee clause naming the Seller and its successors and assigns
as
mortgagee, and all premiums thereon have been paid. The Mortgage obligates
the
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 to obtain and maintain such insurance at such Mortgagor’s cost
and expense, and to seek reimbursement therefor from the Mortgagor. Where
required by state law or regulation, the Mortgagor has been given an opportunity
to choose the carrier of the required hazard insurance, provided the policy
is
not a “master” or “blanket” hazard insurance policy covering a condominium or
any hazard insurance policy covering the common facilities of a planned
unit
development. To the best of the Seller’s knowledge the hazard insurance policy
is the valid and binding obligation of the insurer, is in full force and
effect,
and will be in full force and effect and insure to the benefit of the Trustee
upon the consummation of the transactions contemplated by the Pooling and
Servicing Agreement. The Seller has not engaged in, and has no knowledge
of the
Mortgagor’s having engaged in, any act or omission which would impair the
coverage of any such policy, the benefits of the endorsement provided for
in the
Master Purchase Agreement, or the validity and binding effect of either
including, without limitation, no unlawful fee, commission, kickback or
other
unlawful compensation or value of any kind has been or will be received,
retained or realized by any attorney, firm or other person or entity, and
no
such unlawful items have been received, retained or realized by the
Seller;
(viii) At
the
time of origination of such Mortgage Loan and thereafter, all requirements
of
any federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity or disclosure laws required to be complied with
by the
Seller as the originator of the Mortgage Loan and applicable to the Mortgage
Loan have been complied with in all material respects;
(ix) The
Mortgage has not been satisfied as of the Closing Date, canceled or
subordinated, in whole, or rescinded, and the Mortgaged Property has not
been
released from the lien of the Mortgage, in whole or in part (except for
a
release that does not materially impair the security of the Mortgage Loan
or a
release the effect of which is reflected in the Loan-to-Value Ratio for
the
Mortgage Loan as set forth in the Mortgage Loan Schedule), nor to the best
of
the Seller's knowledge has any instrument been executed that would effect
any
such release, cancellation, subordination or rescission;
(x) Ownership
of the Mortgaged Property is held in fee simple (except for Mortgage Loans
as to
which the related land is held in a leasehold which extends at least five
years
beyond the maturity date of the Mortgage Loan). Except as permitted by
the
fourth sentence of this paragraph (x), the Mortgage is a valid, subsisting
and
enforce-able first lien on the Mortgaged Property, including all buildings
on
the Mortgaged Property and all in-stallations and mechanical, electrical,
plumbing, heating and air conditioning systems affixed to such buildings,
and
all additions, alterations and replace-ments made at any time with respect
to
the foregoing securing the Mortgage Note's original principal bal-ance.
The
Mortgage and the Mortgage Note do not contain any evidence on their face
of any
security interest or other interest or right thereto. Such lien is free
and
clear of all adverse claims, liens and encumbrances having priority over
the
first lien of the Mortgage subject only to (1) the lien of non-delinquent
current real property taxes and assessments not yet due and payable, (2)
covenants, conditions and restric-tions, rights of way, easements and other
matters of the public record as of the date of recording which are acceptable
to
mortgage lending institutions generally, or which are specifically referred
to
in the lender's title insurance policy delivered to the originator of the
Mortgage Loan and either (A) which are referred to or otherwise considered
in
the appraisal made for the originator of the Mortgage Loan, or (B) which
do not
in the aggregate adversely affect the appraised value of the Mortgaged Property
as set forth in such appraisal, and (3) other matters to which like properties
are commonly subject which do not in the aggregate materially interfere
with the
benefits of the security intended to be provided by the Mortgage or the
use,
enjoyment, value or marketability of the related Mortgaged Property. Any
security agreement, chattel mortgage or equivalent document related to
and
delivered in connection with the Mortgage Loan establishes and creates
a valid,
subsisting and enforceable first lien and first priority security interest
on
the property described therein;
(xi) The
Mortgage Note is not subject to a third party's security interest or other
rights or interest therein;
(xii) The
Mortgage Note and the Mortgage and any other agreement executed and delivered
by
a Mortgagor in connection with a Mortgage Loan are genuine, and each is
the
legal, valid and binding obligation of the maker thereof enforceable in
accordance with its terms. All parties to the Mortgage Note, the Mortgage
and
any other such related agreement had legal capacity to enter into the Mortgage
Loan and to execute and deliver the Mortgage Note, the Mortgage and any
such
agreement, and the Mortgage Note, the Mortgage and any other such related
agreement have been duly and properly executed by other such related parties.
No
fraud, error, omission, misrepresentation, or negligence with respect to
a
Mortgage Loan has taken place on the part of any Person, including without
limitation, the Mortgagor, any appraiser, any builder or developer, or
any other
party involved in the origination of the Mortgage Loan. The Mortgage Loan
has
been closed and the proceeds of the Mortgage Loan have been fully disbursed
and
there is no requirement for future advances thereunder, and any and all
requirements as to completion of any on-site or off-site improvement and
as to
disbursements of any escrow funds therefor have been complied with. All
costs,
fees and expenses incurred in making or closing the Mortgage Loan and the
recording of the Mortgage were paid, and the Mortgagor is not entitled
to any
refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(xiii) Immediately
prior to the transfer and assignment, the Mortgage Note and the Mortgage
were
not subject to an assignment or pledge, and the Seller had good title to
and was
the sole owner thereof and had full right to transfer and sell the Mortgage
Loan
free and clear of any encumbrance, equity, lien, pledge, charge, claim
or
security interest, in-cluding, to the best knowledge of the Seller, any
lien,
claim or other interest arising by operation of law;
(xiv) The
Mortgage Loan is covered by either (i) an attorney’s opinion of title and
abstract of title, the form and substance of which is acceptable to prudent
mortgage lending institutions making mortgage loans in the area wherein
the
Mortgaged Property is located or (ii) an ALTA lender’s title insurance policy or
other generally acceptable form of policy or insurance acceptable to FNMA
or
FHLMC and each such title insurance policy is issued by a title insurer
acceptable to FNMA or FHLMC and qualified to do business in the jurisdiction
where the Mortgaged Property is located, insuring the Seller, its successors
and
assigns, as to the first priority lien of the Mortgage in the original
principal
amount of the Mortgage Loan, subject only to the exception contained in
clauses
(1), (2) and (3) of paragraph (ix) of Section 5 of the Master Purchase
Agreement, and in the case of adjustable rate Mortgage Loans, against any
loss
by reason of the invalidity or unenforceability of the lien resulting from
the
provisions of the Mortgage providing for adjustment to the Mortgage Interest
Rate and Monthly Payment. Where required by state law or regulation, the
Mortgagor has been given the opportunity to choose the carrier of the required
mortgage title insurance. Additionally, such lender’s title insurance policy
insures against encroachments by or upon the Mortgaged Property. The Seller,
its
successor and assigns, are the sole insureds of such lender’s title insurance
policy, and such lender’s title insurance policy is valid and remains in full
force and effect and will be in force and effect upon the consummation
of the
transactions contemplated by the Master Purchase Agreement. No claims have
been
made under such lender’s title insurance policy, and to the best of Seller’s
knowledge no prior holder of the related Mortgage, including the Seller,
has
done, by act or omission, anything which would impair the coverage of such
lender’s title insurance policy, including without limitation, no unlawful fee,
commission, kickback or other unlawful compensation or value of any kind
has
been or will be received, retained or realized by any attorney, firm or
other
person or entity, and no such unlawful items have been received, retained
or
realized by the Seller;
(xv) 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 permitting acceleration,
except
for any Mortgage Loan payment which is not late by more than 30 days, and
the
Seller has not waived any default, breach, violation or event permitting
acceleration;
(xvi) As
of the
date of origination or purchase or the Mortgage Loans by the Seller there
were
no mechanics' or similar liens or claims which had been filed for work,
labor or
material (and, to the best of the Seller's knowledge, no rights are outstanding
that under law could give rise to such lien) affecting the related Mortgaged
Property which are or may be liens prior to, or equal or coordinate with,
the
lien of the related Mortgage;
(xvii) All
improvements subject to the Mortgage lay wholly within the boundaries and
building restriction lines of the Mortgaged Property (and wholly within
the
project with respect to a condominium unit) and no improvements on adjoining
properties encroach upon the Mortgaged Property except those which are
insured
against by the title insurance policy referred to in paragraph (xiv) above
and
all improvements on the property comply with all applicable zoning and
subdivision laws and ordinances;
(xviii) Each
Mortgage Loan (except for the Mortgage Loans referred to in the next sentence)
was originated by the Seller, and at the time of each such origina-tion
the
Seller was a mortgagee approved by the Secretary of Housing and Urban
Development (the "Secretary") pursuant to Sections 203 and 211 of the National
Housing Act. Each Mortgage Loan was underwritten in accordance with the
Underwriting Guide as in effect at the time of origination, except to the
extent
the Seller believed at such time that a variance from such Underwriting
Guide
was warranted by compensating factors with respect to such Mortgage Loan.
The
Mortgage contains the usual and customary provision of the Seller at the
time of
origination for the acceleration of the payment of the unpaid principal
balance
of the Mortgage Loan if the related Mortgaged Property is sold without
the prior
consent of the mortgagee thereunder;
(xix) The
Mortgaged Property is undamaged by waste, fire, earthquake or earth movement,
windstorm, flood, tornado, or other casualty which damage is not fully
insured
against by a current and active insurance policy (or at least insured up
to the
outstanding principal balance of the Mortgage Loan) and, to the best of
Seller’s
knowledge is in good repair. There have not been any condemnation proceedings
with respect to the Mortgaged Property and there are no pending
proceedings;
(xx) The
related Mortgage contains customary and enforceable provisions such as
to render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security provided
thereby,
including, (1) in the case of a Mortgage designated as a deed of trust,
by
trustee's sale or judicial foreclosure, and (2) otherwise by judicial
foreclosure. The Seller has no knowledge of any homestead or other exemption
available to the Mortgagor which would interfere with the right to sell
the
Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage;
(xxi) If
the
Mortgage constitutes a deed of trust, a trustee, duly qualified if required
under applicable law to act as such, has been properly designated and currently
so serves and is named in the Mortgage, and no fees or expenses are or
will
become payable to the trustee under the deed of trust, except in connection
with
a trustee's sale or attempted sale after default by the Mortgagor;
(xxii)
The
Mortgage File contains an appraisal of the related Mortgage Property signed
prior to the approval of the Mortgage Loan application by a qualified appraiser,
duly appointed by the Seller, who had no interest, direct or indirect in
the
Mortgaged Property or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan, and the appraisal and appraiser both satisfy the requirements of
FNMA or
FHLMC and any applicable requirement of Title XI of the Federal Institutions
Reform, Recovery, and Enforcement Act of 1989 and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was
originated;
(xxiii) No
Mortgage Loan contains "subsidized buydown" or "graduated payment"
features;
(xxiv) The
Mortgaged Property is a single-family (one- to four-unit) dwelling residence
erected thereon, or an individual condominium unit in a condominium, a
cooperative, or an individual unit in a planned unit development or in a de
minimis planned unit development. No such residence is a mobile home or
a
manufactured dwelling which is not permanently attached to the
land;
(xxv) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures,
consumer
credit protection, equal credit opportunity and disclosure laws applicable
to
the Mortgage Loan have been complied with, the consummation of the transactions
contemplated hereby will not involve the violation of any such laws or
regulations, and the Seller shall maintain in its possession, available
for
inspection, and shall deliver to the Trustee upon demand, evidence of compliance
with all such requirements; The Mortgagor has received all disclosure materials
required by Section 226 19(b) of the Federal Reserve Board's Regulation
Z and
otherwise required by applicable law with respect to the making of adjustable
rate mortgage loans;
(xxvi) There
are
no circumstances or conditions with respect to the Mortgage, the Mortgaged
Property, the Mortgage File, or, to the best of Seller’s knowledge, the
Mortgagor or the Mortgagor’s credit standing that can reasonably be expected to
cause private institutional investors to regard the Mortgage Loan as an
unacceptable investment, cause the Mortgage to become delinquent, or adversely
affect the value or marketability of the Mortgage Loan;
(xxvii) The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents
required to be delivered for each Mortgage Loan pursuant to Section 3(b)
of the
Master Purchase Agreement have been or shall be delivered to the Custodian
pursuant to Section 3(b). The Seller is in possession of a Mortgage File
as
described in Exhibit
1
to the
Master Purchase Agreement, which contains the applicable documents described
in
Exhibit 1 for the applicable loan program, except for such documents the
originals of which have been delivered to the Custodian. Except for the
absence
of recording information, the Assignment of Mortgage is in recordable form
and
is acceptable for recording under the laws of the jurisdiction in which
the
Mortgaged Property is located;
(xxviii)
No
Mortgage Loans are covered by the Georgia Fair Lending Act (GAFLA), which
became
effective October 1, 2002;
(xxix) To
RWT
Holdings' knowledge, each Mortgage Loan at the time it was made complied
in all
material respects with applicable local, state, and federal laws, including,
but
not limited to, all applicable predatory and abusive lending laws;
and
(xxx) No
Mortgage Loan is covered by the Home Ownership and Equity Protection Act
of 1994
and no Mortgage Loan is “high cost” as defined by any applicable federal, state
or local predatory or abusive lending law, and no mortgage loan is a “high cost”
or “covered” mortgage loan, as applicable (as such terms are defined in the then
current Standard and Poor’s LEVELS Glossary which is now Version 6.0, Appendix
E);
(xxxi) None
of
the proceeds of any Mortgage Loan were used to finance the purchase of
single
premium credit insurance policies;
(xxxii) No
Mortgage Loan contains prepayment penalties that extend beyond five years
after
the date of origination;
(xxxiii) Each
Mortgage Loan would be a “qualified mortgage” within the meaning of Section
860G(a)(3)(A) of the Code and Treasury Regulations Section 1.860G-2(a)(1)
if
transferred to a REMIC on its startup date in exchange for the regular
or
residual interests of the REMIC; and
(xxxv) There
were no
adverse selection procedures used in selecting the Mortgage Loan from among
the
residential mortgage loans which were available for inclusion in the Mortgage
Loans.
X.
|
Mortgage
Loans purchased under the Master Mortgage Loan Purchase Agreement,
dated
as of June 1, 2006, among RWT Holdings, Inc., as Purchaser, Xxxxxxx
Xxxxx
Credit Corporation, as the Loan Seller, and Xxxxxxx Xxxxx Funding
Corporation, as the Participation Seller (the “RWT-Xxxxxxx
Agreement”)
|
With
respect to each Mortgage Loan, RWT hereby makes the following representations
and warranties. Such representations and warranties speak as of the Closing
Date
with respect to the Mortgage Loans (as such capitalized terms are defined
in the
Pooling and Servicing Agreement), unless otherwise indicated. Capitalized
terms
are as defined in this Schedule A or in the RWT-Xxxxxxx Agreement.
(i)
The
information set forth in the Mortgage Loan Schedule is true and correct
in all
material respects and
the
information provided to the rating agencies, including the loan level detail,
is
true and correct according to the rating agency requirements;
(ii)
As
of the
related Closing Date, the Mortgage Loan is not delinquent in payment more
than
29 days and no payment for a Mortgage Loan has been dishonored; the Mortgage
Loan has never been delinquent in payment for more than 59 days and has
not more
than once during the twelve months preceding the Cut-Off Date been delinquent
in
payment for more than 30 days; there are no material defaults under the
terms of
the Mortgage Loan; RWT has not advanced funds, or induced, solicited or
knowingly received any advance of funds from a party other than the owner
of the
Mortgaged Property subject to the Mortgage, directly or indirectly, for
the
payment of any amount required by the Mortgage Loan;
(iii)
To
the
best of RWT's knowledge, there are no delinquent taxes or other outstanding
charges affecting the related Mortgaged Property which would permit a taxing
authority to initiate foreclosure proceedings against the Mortgaged
Property;
(iv)
The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments contained in the
Mortgage
File, the substance of which waiver, alteration or modification is reflected
on
the Mortgage Loan Schedule. No Mortgagor has been released, in whole or
in part,
except in connection with an assumption agreement which assumption agreement
is
part of the Mortgage File and the terms of which are reflected in the Mortgage
Loan Schedule;
(v)
The
Mortgagor has not asserted that the Mortgage Note and the Mortgage are
subject
to any right of rescission, set-off, counterclaim or defense, including
the
defense of usury, nor will the operation of any of the terms of the Mortgage
Note and the Mortgage, or the exercise of any right thereunder, render
the
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of
usury and
to the best of RWT's knowledge, no such right of rescission, set-off,
counterclaim or defense has been asserted by any Person other than the
obligor
with respect thereto;
(vi)
Pursuant
to the terms of the Mortgage, all buildings or other improvements upon
the
Mortgaged Property are insured by a generally acceptable insurer against
loss by
fire, hazards of extended coverage and such other hazards as are customary
in
the area where the Mortgaged Property is located. If required by the Flood
Disaster Protection Act of 1973, as amended, the Mortgage Loan is covered
by a
flood insurance policy meeting the requirements of the current guidelines
of the
Federal Insurance Administration. All individual insurance policies contain
a
standard mortgagee clause naming the Loan Seller and its successors and
assigns
as mortgagee, and all premiums thereon have been paid. The Mortgage obligates
the 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 to obtain and maintain such insurance
at
such Mortgagor’s cost and expense, and to seek reimbursement therefor from the
Mortgagor. Where required by state law or regulation, the Mortgagor has
been
given an opportunity to choose the carrier of the required hazard insurance,
provided the policy is not a “master” or “blanket” hazard insurance policy
covering a condominium or any hazard insurance policy covering the common
facilities of a planned unit development. To the best of RWT’s knowledge the
hazard insurance policy is the valid and binding obligation of the insurer,
is
in full force and effect, and will be in full force and effect and insure
to the
benefit of the Purchaser upon the consummation of the transactions contemplated
by the RWT-Xxxxxxx Agreement. RWT has not engaged in, and has no knowledge
of
the Mortgagor’s having engaged in, any act or omission which would impair the
coverage of any such policy, the benefits of the endorsement provided for
herein, or the validity and binding effect of either including, without
limitation, no unlawful fee, commission, kickback or other unlawful compensation
or value of any kind has been or will be received, retained or realized
by any
attorney, firm or other person or entity, and no such unlawful items have
been
received, retained or realized by RWT;
(vii)
At
the
time of origination of such Mortgage Loan and thereafter, all requirements
of
any federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity or disclosure laws required to be complied with
by the
Loan Seller as the originator of the Mortgage Loan and applicable to the
Mortgage Loan have been complied with in all material respects;
(viii)
The
Mortgage has not been satisfied as of the Closing Date, canceled or
subordinated, in whole, or rescinded, and the Mortgaged Property has not
been
released from the lien of the Mortgage, in whole or in part (except for
a
release that does not materially impair the security of the Mortgage Loan
or a
release the effect of which is reflected in the Loan-to-Value Ratio for
the
Mortgage Loan as set forth in the Mortgage Loan Schedule), nor to the best
of
RWT's knowledge has any instrument been executed that would effect any
such
release, cancellation, subordination or rescission;
(ix)
Ownership
of the Mortgaged Property is held in fee simple or a leasehold estate.
With
respect to Mortgage Loans that are secured by a leasehold estate, (i) the
lease
is valid, in full force and effect, and conforms to all FNMA’s requirements for
leasehold estates; (ii) all rents and other payments due under the lease
have
been paid; (iii) the lessee is not in default under any provision of the
lease;
(iv) the term of the lease exceeds the maturity date of the related Mortgage
Loan by at least five (5) years; and (v) the terms of the lease provide
a
Mortgagee with an opportunity to cure any defaults. Except as permitted
by the
fourth sentence of this paragraph (ix), the Mortgage is a valid, subsisting
and
enforceable first lien on the Mortgaged Property, including all buildings
on the
Mortgaged Property and all installations and mechanical, electrical, plumbing,
heating and air conditioning systems affixed to such buildings, and all
additions, alterations and replacements made at any time with respect to
the
foregoing securing the Mortgage Note's original principal balance. The
Mortgage
and the Mortgage Note do not contain any evidence on their face of any
security
interest or other interest or right thereto. Such lien is free and clear
of all
adverse claims, liens and encumbrances having priority over the first lien
of
the Mortgage subject only to (1) the lien of non-delinquent current real
property taxes and assessments not yet due and payable, (2) covenants,
conditions and restrictions, rights of way, easements and other matters
of the
public record as of the date of recording which are acceptable to mortgage
lending institutions generally, or which are specifically referred to in
the
lender's title insurance policy delivered to the originator of the Mortgage
Loan
and either (A) which are referred to or otherwise considered in the appraisal
made for the originator of the Mortgage Loan, or (B) which do not in the
aggregate adversely affect the appraised value of the Mortgaged Property
as set
forth in such appraisal, and (3) other matters to which like properties
are
commonly subject which do not in the aggregate materially interfere with
the
benefits of the security intended to be provided by the Mortgage or the
use,
enjoyment, value or marketability of the related Mortgaged Property. Any
security agreement, chattel mortgage or equivalent document related to
and
delivered in connection with the Mortgage Loan establishes and creates
a valid,
subsisting and enforceable first lien and first priority security interest
on
the property described therein. With respect to each Cooperative Loan,
the
security instruments create a valid, enforceable and subsisting first priority
security interest in the Cooperative Apartment securing the related Mortgage
Note subject only to (a) the lien of the related cooperative for current,
but
not yet due and payable, assignments representing the Mortgagor’s pro rata share
of payments for a blanket mortgage, if any, current, but not yet due and
payable, and future real property taxes, insurance premiums, maintenance
fees
and other assessments to which like collateral is commonly subject, and
(b)
other matters to which the collateral is commonly subject which do not
materially interfere with the benefits of the security intended to be provided;
provided, however, that the related proprietary lease for the Cooperative
Apartment may be subordinated or otherwise subject to the lien of a Mortgage
on
the cooperative building;
(x)
The
Mortgage Note is not subject to a third party's security interest or other
rights or interest therein;
(xi)
The
Mortgage Note and the Mortgage and any other agreement executed and delivered
by
a Mortgagor in connection with a Mortgage Loan are genuine, and each is
the
legal, valid and binding obligation of the maker thereof enforceable in
accordance with its terms. All parties to the Mortgage Note, the Mortgage
and
any other such related agreement had legal capacity to enter into the Mortgage
Loan and to execute and deliver the Mortgage Note, the Mortgage and any
such
agreement, and the Mortgage Note, the Mortgage and any other such related
agreement have been duly and properly executed by other such related parties.
No
fraud, error, omission, misrepresentation, or negligence with respect to
a
Mortgage Loan has taken place on the part of any Person, including without
limitation, the Mortgagor, any appraiser, any builder or developer, or
any other
party involved in the origination of the Mortgage Loan. The Mortgage Loan
has
been closed and the proceeds of the Mortgage Loan have been fully disbursed
and
there is no requirement for future advances thereunder, and any and all
requirements as to completion of any on-site or off-site improvement and
as to
disbursements of any escrow funds therefor have been complied with. All
costs,
fees and expenses incurred in making or closing the Mortgage Loan and the
recording of the Mortgage were paid, and the Mortgagor is not entitled
to any
refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(xii)
Immediately
prior to the transfer and assignment to the Purchaser, the Mortgage Note
and the
Mortgage were not subject to an assignment or pledge, and RWT had good
title to
and was the sole owner thereof and had full right to transfer and sell
the
Mortgage Loan free and clear of any encumbrance, equity, lien, pledge,
charge,
claim or security interest, including, to the best knowledge of RWT, any
lien,
claim or other interest arising by operation of law;
(xiii)
The
Mortgage Loan is covered by either (i) an attorney’s opinion of title and
abstract of title, the form and substance of which is acceptable to prudent
mortgage lending institutions making mortgage loans in the area wherein
the
Mortgaged Property is located or (ii) an ALTA lender’s title insurance policy or
other generally acceptable form of policy or insurance acceptable to FNMA
or
FHLMC and each such title insurance policy is issued by a title insurer
acceptable to FNMA or FHLMC and qualified to do business in the jurisdiction
where the Mortgaged Property is located, insuring the Loan Seller, its
successors and assigns, as to the first priority lien of the Mortgage in
the
original principal amount of the Mortgage Loan, subject only to the exception
contained in clauses (1), (2) and (3) of paragraph (ix) of this Section
5, and
in the case of adjustable rate Mortgage Loans, against any loss by reason
of the
invalidity or unenforceability of the lien resulting from the provisions
of the
Mortgage providing for adjustment to the Mortgage Interest Rate and Monthly
Payment. Where required by state law or regulation, the Mortgagor has been
given
the opportunity to choose the carrier of the required mortgage title insurance.
Additionally, such lender’s title insurance policy insures against encroachments
by or upon the Mortgaged Property. The Loan Seller, its successor and assigns,
are the sole insureds of such lender’s title insurance policy, and such lender’s
title insurance policy is valid and remains in full force and effect and
will be
in force and effect upon the consummation of the transactions contemplated
by
the RWT-Xxxxxxx Agreement. No claims have been made under such lender’s title
insurance policy, and to the best of Loan Seller’s knowledge no prior holder of
the related Mortgage, including RWT, has done, by act or omission, anything
which would impair the coverage of such lender’s title insurance policy,
including without limitation, no unlawful fee, commission, kickback or
other
unlawful compensation or value of any kind has been or will be received,
retained or realized by any attorney, firm or other person or entity, and
no
such unlawful items have been received, retained or realized by
RWT;
(xiv)
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 permitting acceleration,
except
for any Mortgage Loan payment which is not late by more than 30 days, and
RWT
has not waived any default, breach, violation or event permitting
acceleration;
(xv)
As
of the
date of origination or purchase or the Mortgage Loans by RWT there were
no
mechanics' or similar liens or claims which had been filed for work, labor
or
material (and, to the best of RWT's knowledge, no rights are outstanding
that
under law could give rise to such lien) affecting the related Mortgaged
Property
which are or may be liens prior to, or equal or coordinate with, the lien
of the
related Mortgage;
(xvi)
All
improvements subject to the Mortgage lay wholly within the boundaries and
building restriction lines of the Mortgaged Property (and wholly within
the
project with respect to a condominium unit) and no improvements on adjoining
properties encroach upon the Mortgaged Property except those which are
insured
against by the title insurance policy referred to in paragraph (xiii) above
and
all improvements on the property comply with all applicable zoning and
subdivision laws and ordinances;
(xvii)
Each
Mortgage Loan (except for the Mortgage Loans referred to in the next sentence)
was originated by the Loan Seller, and at the time of each such origination
the
Loan
Seller
was a mortgagee approved by the Secretary of Housing and Urban Development
(the
“Secretary”) pursuant to Sections 203 and 211 of the National Housing Act. Each
Mortgage Loan was underwritten in accordance with the Underwriting Guide
as in
effect at the time of origination, except to the extent the Loan Seller
believed
at such time that a variance from such Underwriting Guide was warranted
by
compensating factors with respect to such Mortgage Loan. The Mortgage contains
the usual and customary provision of the Loan Seller at the time of origination
for the acceleration of the payment of the unpaid principal balance of
the
Mortgage Loan if the related Mortgaged Property is sold without the prior
consent of the mortgagee thereunder;
(xviii)
The
Mortgaged Property is undamaged by waste, fire, earthquake or earth movement,
windstorm, flood, tornado, or other casualty which damage is not fully
insured
against by a current and active insurance policy (or at least insured up
to the
outstanding principal balance of the Mortgage Loan) and, to the best of
RWT’s
knowledge is in good repair. There have not been any condemnation proceedings
with respect to the Mortgaged Property and there are no pending
proceedings;
(xix)
The
related Mortgage contains customary and enforceable provisions such as
to render
the rights and remedies of the holder thereof adequate for the realization
against the Mortgaged Property of the benefits of the security provided
thereby,
including, (1) in the case of a Mortgage designated as a deed of trust,
by
trustee's sale or judicial foreclosure, and (2) otherwise by judicial
foreclosure. RWT has no knowledge of any homestead or other exemption available
to the Mortgagor which would interfere with the right to sell the Mortgaged
Property at a trustee's sale or the right to foreclose the
Mortgage;
(xx)
If
the
Mortgage constitutes a deed of trust, a trustee, duly qualified if required
under applicable law to act as such, has been properly designated and currently
so serves and is named in the Mortgage, and no fees or expenses are or
will
become payable to the trustee under the deed of trust, except in connection
with
a trustee's sale or attempted sale after default by the Mortgagor;
(xxi)
The
Mortgage File contains an appraisal of the related Mortgage Property signed
prior to the approval of the Mortgage Loan application by a qualified appraiser,
duly appointed by the Loan Seller, who had no interest, direct or indirect
in
the Mortgaged Property or in any loan made on the security thereof, and
whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan, and the appraisal and appraiser both satisfy the requirements of
FNMA or
FHLMC and any applicable requirement of Title XI of the Federal Institutions
Reform, Recovery, and Enforcement Act of 1989 and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was
originated;
(xxii)
No
Mortgage Loan contains “subsidized buydown” or “graduated payment”
features;
(xxiii)
The
Mortgaged Property is a single-family (one- to four-unit) dwelling residence
erected thereon, or an individual condominium unit in a condominium, a
cooperative, or an individual unit in a planned unit development or in a de
minimis planned unit development. No such residence is a mobile home or
a
manufactured dwelling which is not permanently attached to the
land;
(xxiv)
Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures,
consumer
credit protection, equal credit opportunity and disclosure laws applicable
to
the Mortgage Loan have been complied with, the consummation of the transactions
contemplated hereby will not involve the violation of any such laws or
regulations, and the Loan Seller shall maintain in its possession, available
for
the Purchaser's inspection, and shall deliver to the Purchaser upon demand,
evidence of compliance with all such requirements; The Mortgagor has received
all disclosure materials required by Section 226 19(b) of the Federal Reserve
Board's Regulation Z and otherwise required by applicable law with respect
to
the making of adjustable rate mortgage loans;
(xxv)
There
are
no circumstances or conditions with respect to the Mortgage, the Mortgaged
Property, the Mortgage File, or, to the best of Loan Seller’s knowledge, the
Mortgagor or the Mortgagor’s credit standing that can reasonably be expected to
cause private institutional investors to regard the Mortgage Loan as an
unacceptable investment, cause the Mortgage to become delinquent, or adversely
affect the value or marketability of the Mortgage Loan;
(xxvi)
No
Mortgage Loan is covered by the Home Ownership and Equity Protection Act
of 1994
and no Mortgage Loan is “high cost” as defined by any applicable federal, state
or local predatory or abusive lending law, and no mortgage loan is a “high cost”
or “covered” mortgage loan, as applicable (as such terms are defined in the then
current Standard and Poor’s LEVELS Glossary which is now Version 6.0, Appendix
E);
(xxvii)
Each
Mortgage Loan at the time it was made complied in all material respects
with
applicable local, state and federal laws, including, but not limited to,
all
applicable predatory or abusive lending laws;
(xxviii)
The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents
required to be delivered for each Mortgage Loan pursuant to Section 3(b)
have
been or shall be delivered to the Custodian pursuant to Section 3(b). The
Loan
Seller is in possession of a Mortgage File as described in Exhibit
1
hereto,
which contains the applicable documents described in Exhibit 1 for the
applicable loan program, except for such documents the originals of which
have
been delivered to the Custodian. Except for the absence of recording
information, the Assignment of Mortgage is in recordable form and is acceptable
for recording under the laws of the jurisdiction in which the Mortgaged
Property
is located;
(xxix)
To
the
best of the Seller's knowledge, as of the date of origination of the Mortgage
Loan, there does not exist on the related Mortgaged Property any hazardous
substances, hazardous wastes, or solid wastes, as such terms are defined
in the
Comprehensive Environmental
Response, Compensation, and Liability Act, the Resource Conservation and
Recovery Act of 1976, or other federal, state or local environmental
legislation;
(xxx)
With
respect to each MERS Mortgage Loan, a MIN has been assigned by MERS and
such MIN
is accurately provided on the Mortgage Loan Schedule;
(xxxi)
With
respect to each MERS Mortgage Loan, RWT has not received any notice of
liens or
legal actions with respect to such Mortgage Loan and no such notices have
been
electronically posted on the MERS System;
(xxxii)
None
of
the proceeds of any Mortgage Loan were used to finance the purchase of
single
premium credit insurance policies;
(xxxiii)
No
Mortgage Loan contains prepayment penalties that extend beyond five years
after
the date of origination;
(xxxiv)
Each
Mortgage Loan would be a “qualified mortgage” within the meaning of Section
860G(a)(3)(A) of the Code and Treasury Regulations Section 1.860G-2(a)(1)
if
transferred to a REMIC on its startup date in exchange for the regular
or
residual interests of the REMIC;
(xxxv)
There
were no
adverse selection procedures used in selecting the Mortgage Loan from among
the
residential mortgage loans which were available for inclusion in the Mortgage
Loans; and
(xxxvi)
No
Mortgage Loan was originated on or after October 1, 2002 and prior to March
7,
2003, which is secured by property located in the State of Georgia. No
Mortgage
Loan was originated on or after March 7, 2003 which is a “high cost home loan”
as defined under the Georgia Fair Lending Act, which became effective October
1,
2002.
XI.
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With
respect to Mortgage Loans purchased under the Mortgage Loan Purchase
and
Sale Agreement, dated as of April 1, 2004, between GMAC and American
Mortgage Network, Inc. (the “GMAC-AmNet
Agreement”)
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With
respect to each Mortgage Loan, RWT Holdings hereby makes the following
representations and warranties. Such representations and warranties speak
as of
the Closing Date with respect to the Mortgage Loans (as such capitalized
terms
are defined in the Pooling and Servicing Agreement), unless otherwise indicated.
Capitalized terms are as defined in this Schedule A or in the GMAC-AmNet
Agreement.
(a) Mortgage
Loans as Described.
The
information set forth in the related Mortgage Loan Schedule is complete,
true
and correct and the information
provided to the rating agencies, including the loan level detail, is true
and
correct according to the rating agency requirements;
(b) Payments
Current.
All
payments required to be made up to the related Closing Date for the Mortgage
Loan under the terms of the Mortgage Note have been made and credited.
No
payment required under the Mortgage Loan is 30 days or more delinquent
nor has
any payment under the Mortgage Loan been 30 days or more delinquent at
any time
since the origination of the Mortgage Loan;
(c) No
Outstanding Charges.
There
are no defaults in complying with the terms of the Mortgage, and all taxes,
governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due
and
owing have been paid, or an escrow of funds has been established in an
amount
sufficient to pay for every such item which remains unpaid and which has
been
assessed but is not yet due and payable. The Seller has not advanced funds,
or
induced, solicited or knowingly received any advance of funds by a party
other
than the Mortgagor, directly or indirectly, for the payment of any amount
required under the Mortgage Loan, except for interest accruing from the
date of
the Mortgage Note or date of disbursement of the Mortgage Loan proceeds,
whichever is earlier, to the day which precedes by one month the related
Due
Date of the first installment of principal and interest;
(d) Original
Terms Unmodified.
The
terms of the Mortgage Note and Mortgage have not been impaired, waived,
altered
or modified in any respect, from the date of origination 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 Custodian or to such other
Person
as the Purchaser shall designate in writing, and the terms of which are
reflected in the related Mortgage Loan Schedule. The substance of any such
waiver, alteration or modification has been approved by the issuer of any
related PMI Policy and the title insurer, if any, to the extent required
by the
policy, and its terms are reflected on the related Mortgage Loan Schedule,
if
applicable. No Mortgagor has been released, in whole or in part, except
in
connection with an assumption agreement, approved by the issuer of any
related
PMI Policy and the title insurer, to the extent required by the policy,
and
which assumption agreement is part of the Mortgage Loan File delivered
to the
Custodian or to such other Person as the Purchaser shall designate in writing
and the terms of which are reflected in the related Mortgage Loan
Schedule;
(e) No
Defenses.
The
Mortgage Loan is not subject to any right of rescission, setoff, counterclaim
or
defense, including without limitation the defense of usury, nor will the
operation of any of the terms of the Mortgage Note or the Mortgage, or
the
exercise of any right thereunder, render either the Mortgage Note or the
Mortgage unenforceable, in whole or in part and no such right of rescission,
set-off, counterclaim or defense has been asserted with respect
thereto;
(f) Hazard
Insurance.
Pursuant to the terms of the Mortgage, all buildings or other improvements
upon
the Mortgaged Property are insured by a generally acceptable insurer against
loss by fire, hazards of extended coverage and such other hazards as are
provided for in the Underwriting Guidelines. If required by the National
Flood
Insurance Act of 1968, as amended, each Mortgage Loan is covered by a flood
insurance policy meeting the requirements of the current guidelines of
the
Federal Insurance Administration as in effect which policy conforms with
the
Underwriting Guidelines. All individual insurance policies contain a standard
mortgagee clause naming the Seller and its successors and assigns as mortgagee,
and all premiums thereon have been paid. The Mortgage obligates the 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 to obtain and maintain such insurance at such Mortgagor’s cost and
expense, and to seek reimbursement therefor from the Mortgagor. Where required
by state law or regulation, the Mortgagor has been given an opportunity
to
choose the carrier of the required hazard insurance, provided the policy
is not
a “master” or “blanket” hazard insurance policy covering a condominium, or any
hazard insurance policy covering the common facilities of a planned unit
development. The hazard insurance policy is the valid and 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 Purchaser upon the consummation of the
transactions contemplated by the GMAC-AmNet Agreement. The Seller has not
engaged in, and has no knowledge of the Mortgagor’s having engaged in, any act
or omission which would impair the coverage of any such policy, the benefits
of
the endorsement provided for herein, or the validity and binding effect
of
either including, without limitation, no unlawful fee, commission, kickback
or
other unlawful compensation or value of any kind has been or will be received,
retained or realized by any attorney, firm or other person or entity, and
no
such unlawful items have been received, retained or realized by the
Seller;
(g) Compliance
with Applicable Laws.
Any and
all requirements of any federal, state or local law including, without
limitation, usury, truth- in- lending, real estate settlement procedures,
consumer credit protection, equal credit opportunity, predatory lending,
and
disclosure laws applicable to the Mortgage Loan have been complied with,
the
consummation of the transactions contemplated hereby will not involve the
violation of any such laws or regulations, and the Seller shall maintain
in its
possession, available for the Purchaser’s inspection, and shall deliver to the
Purchaser upon demand, evidence of compliance with all such
requirements;
(h) No
Satisfaction of Mortgage.
The
Mortgage has not been satisfied, canceled, subordinated or rescinded, in
whole
or in part, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part, nor has any instrument been executed
that
would effect any such release, cancellation, subordination or rescission.
The
Seller has not waived the performance by the Mortgagor of any action, if
the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Seller waived any default resulting from any action
or
inaction by the Mortgagor;
(i) Type
of Mortgaged Property.
With
respect to a Mortgage Loan that is not a Co-op Loan and is not secured
by an
interest in a leasehold estate, the Mortgaged Property is a fee simple
estate
that consists of a single parcel of real property with a detached single
family
residence erected thereon, or a two- to four-family dwelling, or an individual
residential condominium unit in a condominium project, or an individual
unit in
a planned unit development, or an individual unit in a residential cooperative
housing corporation; provided, however, that any condominium unit, planned
unit
development or residential cooperative housing corporation shall conform
with
the Underwriting Guidelines. No portion of the Mortgaged Property (or Underlying
Mortgaged Property, in the case of a Co-op Loan) is used for commercial
purposes, and since the date of origination, no portion of the Mortgaged
Property has been used for commercial purposes; provided, that Mortgaged
Properties which contain a home office shall not be considered as being
used for
commercial purposes as long as the Mortgaged Property has not been altered
for
commercial purposes and is not storing any chemicals or raw materials other
than
those commonly used for homeowner repair, maintenance and/or household
purposes.
None of the Mortgaged Properties are Manufactured Homes, log homes, mobile
homes, geodesic domes or other unique property types;
(j) Valid
First Lien.
The
Mortgage is a valid, subsisting, enforceable and perfected, first lien
on the
Mortgaged Property, including all buildings and improvements on the Mortgaged
Property and all installations and mechanical, electrical, plumbing, heating
and
air conditioning systems located in or annexed to such buildings, and all
additions, alterations and replacements made at any time with respect to
the
foregoing. The lien of the Mortgage is subject only to:
(i)
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the
lien of current real property taxes and assessments not yet due
and
payable;
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(ii)
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covenants,
conditions and restrictions, rights of way, easements and other
matters of
the public record as of the date of recording acceptable to prudent
mortgage lending institutions generally and specifically referred
to in
the lender’s title insurance policy delivered to the originator of the
Mortgage Loan and (a) specifically referred to or otherwise considered
in
the appraisal made for the originator of the Mortgage Loan or
(b) which do
not adversely affect the Appraised Value of the Mortgaged Property
set
forth in such appraisal; and
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(iii)
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other
matters to which like properties are commonly subject which do
not
materially interfere with the benefits of the security intended
to be
provided by the Mortgage or the use, enjoyment, value or marketability
of
the related Mortgaged Property.
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Any
security agreement, chattel mortgage or equivalent document related to
and
delivered in connection with the Mortgage Loan establishes and creates
a valid,
subsisting, enforceable and perfected first lien and first priority security
interest on the property described therein and the Seller has full right
to sell
and assign the same to the Purchaser.
With
respect to any Co-op Loan, the related Mortgage is a valid, subsisting
and
enforceable first priority security interest on the related cooperative
shares
securing the Mortgage Note, subject only to (a) liens of the related residential
cooperative housing corporation for unpaid assessments representing the
Mortgagor’s pro rata share of the related residential cooperative housing
corporation’s payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other assessments
to
which like collateral is commonly subject and (b) other matters to which
like
collateral is commonly subject which do not materially interfere with the
benefits of the security interest intended to be provided by the related
Security Agreement;
(k) Validity
of Mortgage Documents.
The
Mortgage Note and the Mortgage and any other agreement executed and delivered
by
a Mortgagor in connection with a Mortgage Loan are genuine, and each is
the
legal, valid and binding obligation of the maker thereof enforceable in
accordance with its terms. All parties to the Mortgage Note, the Mortgage
and
any other such related agreement had legal capacity to enter into the Mortgage
Loan and to execute and deliver the Mortgage Note, the Mortgage and any
such
agreement, and the Mortgage Note, the Mortgage and any other such related
agreement have been duly and properly executed by other such related parties.
No
fraud, error, omission, misrepresentation, negligence or similar occurrence
with
respect to a Mortgage Loan has taken place on the part of the Seller in
connection with the origination of the Mortgage Loan or in the application
of
any insurance in relation to such Mortgage Loan. No fraud, error, omission,
misrepresentation, negligence or similar occurrence with respect to a Mortgage
Loan has taken place on the part of any Person, including without limitation,
the Mortgagor, any appraiser, any builder or developer, or any other party
involved in the origination of the Mortgage Loan or in the application
for any
insurance in relation to such Mortgage Loan. The Seller has reviewed all
of the
documents constituting the Servicing File and has made such inquiries as
it
deems necessary to make and confirm the accuracy of the representations
set
forth herein;
(l) Full
Disbursement of Proceeds.
The
Mortgage Loan has been closed and the proceeds of the Mortgage Loan have
been
fully disbursed and there is no requirement for future advances thereunder,
and
any and all requirements as to completion of any on-site or off-site improvement
and as to disbursements of any escrow funds therefor have been complied
with.
All costs, fees and expenses incurred in making or closing the Mortgage
Loan and
the recording of the Mortgage were paid, and the Mortgagor is not entitled
to
any refund of any amounts paid or due under the Mortgage Note or
Mortgage;
(m) Ownership.
The
Seller is the sole owner of record and holder of the Mortgage Loan and
the
indebtedness evidenced by each Mortgage Note and upon the sale of the Mortgage
Loans to the Purchaser, the Seller will retain the Mortgage Files or any
part
thereof with respect thereto not delivered to the Custodian, the Purchaser
or
the Purchaser’s designee, in trust only for the purpose of servicing and
supervising the servicing of each Mortgage Loan. The Mortgage Loan is not
assigned or pledged, and the Seller has good, indefeasible and marketable
title
thereto, and has full right to transfer and sell the Mortgage Loan to the
Purchaser free and clear of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or security interest, and has full right and
authority subject to no interest or participation of, or agreement with,
any
other party, to sell and assign each Mortgage Loan pursuant to the GMAC-AmNet
Agreement and following the sale of each Mortgage Loan, the Purchaser will
own
such Mortgage Loan free and clear of any encumbrance, equity, participation
interest, lien, pledge, charge, claim or security interest. The Seller
intends
to relinquish all rights to possess, control and monitor the Mortgage Loan.
After the related Closing Date, the Seller will have no right to modify
or alter
the terms of the sale of the Mortgage Loan and the Seller will have no
obligation or right to repurchase the Mortgage Loan, except as provided
in the
GMAC-AmNet Agreement;
(n) Doing
Business.
All
parties which have had any interest in the Mortgage Loan, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) (1) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the
Mortgaged
Property is located, and (2) either (i) organized under the laws of such
state,
or (ii) qualified to do business in such state, or (iii) a federal savings
and
loan association, a savings bank or a national bank having a principal
office in
such state, or (3) not doing business in such state;
(o) LTV,
PMI Policy.
No
Mortgage Loan has an LTV greater than 100%. Any Mortgage Loan that had
at the
time of origination an LTV in excess of 80% is insured as to payment defaults
by
a PMI Policy. Any PMI Policy in effect covers the related Mortgage Loan
for the
life of such Mortgage Loan, subject to applicable law. All provisions of
such
PMI Policy have been and are being complied with, such policy is in full
force
and effect, and all premiums due thereunder have been paid and shall be
paid in
accordance with policy requirements. No action, inaction, or event has
occurred
and no state of facts exists that has, or will result in the exclusion
from,
denial of, or defense to coverage. Any Mortgage Loan subject to a PMI Policy
obligates the Mortgagor thereunder to maintain the PMI Policy and to pay
all
premiums and charges in connection therewith. The Mortgage Interest Rate
for the
Mortgage Loan as set forth on the related Mortgage Loan Schedule is net
of any
such insurance premium;
(p) Title
Insurance.
With
respect to a Mortgage Loan which is not a Co-op Loan, the Mortgage Loan
is
covered by an ALTA lender’s title insurance policy or other generally acceptable
form of policy or insurance acceptable under the Underwriting Guidelines
and
each such title insurance policy is issued by a title insurer acceptable
under
the Underwriting Guidelines and qualified to do business in the jurisdiction
where the Mortgaged Property is located, insuring the Seller, its successors
and
assigns, as to the first priority lien of the Mortgage in the original
principal
amount of the Mortgage Loan (or to the extent a Mortgage Note provides
for
negative amortization, the maximum amount of negative amortization in accordance
with the Mortgage), subject only to the exceptions contained in clauses
(i) and
(ii) of paragraph (j) of Subsection 9.02 of the GMAC-AmNet Agreement, and
in the
case of Adjustable Rate Mortgage Loans, against any loss by reason of the
invalidity or unenforceability of the lien resulting from the provisions
of the
Mortgage providing for adjustment to the Mortgage Interest Rate and Monthly
Payment. Where required by state law or regulation, the Mortgagor has been
given
the opportunity to choose the carrier of the required mortgage title insurance.
Additionally, such lender’s title insurance policy affirmatively insures ingress
and egress, and against encroachments by or upon the Mortgaged Property
or any
interest therein. The Seller, its successor and assigns, are the sole insureds
of such lender’s title insurance policy, and such lender’s title insurance
policy is valid and remains in full force and effect and will be in force
and
effect upon the consummation of the transactions contemplated by the GMAC-AmNet
Agreement. No claims have been made under such lender’s title insurance policy,
and no prior holder of the related Mortgage, including the Seller, has
done, by
act or omission, anything which would impair the coverage of such lender’s title
insurance policy, including without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has been or
will be
received, retained or realized by any attorney, firm or other person or
entity,
and no such unlawful items have been received, retained or realized by
the
Seller;
(q) No
Defaults.
Other
than payments due but not yet 30 days or more delinquent, there is no default,
breach, violation or event which would permit acceleration existing under
the
Mortgage or the Mortgage Note and no event which, with the passage of time
or
with notice and the expiration of any grace or cure period, would constitute
a
default, breach, violation or event which would permit acceleration, and
neither
the Seller nor any of its affiliates nor any of their respective predecessors,
have waived any default, breach, violation or event which would permit
acceleration;
(r) No
Mechanics’ Liens.
There
are no mechanics’ or similar liens or claims which have been filed for work,
labor or material (and no rights are outstanding that under law could give
rise
to such liens) affecting the related Mortgaged Property which are or may
be
liens prior to, or equal or coordinate with, the lien of the related Mortgage;
(s) Location
of Improvements; No Encroachments.
All
improvements which were considered in determining the Appraised Value of
the
Mortgaged Property lay wholly within the boundaries and building restriction
lines of the Mortgaged Property, and no improvements on adjoining properties
encroach upon the Mortgaged Property. No improvement located on or being
part of
the Mortgaged Property is in violation of any applicable zoning law or
regulation;
(t) Origination;
Payment Terms.
The
Mortgage Loan was originated by a mortgagee approved by the Secretary of
Housing
and Urban Development pursuant to Sections 203 and 211 of the National
Housing
Act, a savings and loan association, a savings bank, a commercial bank,
credit
union, insurance company or other similar institution which is supervised
and
examined by a federal or state authority. Principal payments on the Mortgage
Loan commenced no more than seventy days after funds were disbursed in
connection with the Mortgage Loan. The Mortgage Interest Rate as well as,
in the
case of an Adjustable Rate Mortgage Loan, the Lifetime Rate Cap and the
Periodic
Cap are as set forth on the related Mortgage Loan Schedule. The Mortgage
Note is
payable in equal monthly installments of principal and interest, which
installments of interest, with respect to Adjustable Rate Mortgage Loans,
are
subject to change due to the adjustments to the Mortgage Interest Rate
on each
Interest Rate Adjustment Date, with interest calculated and payable in
arrears,
sufficient to amortize the Mortgage Loan fully by the stated maturity date,
over
an original term of not more than fifteen years from commencement of
amortization. Unless otherwise specified on the related Mortgage Loan Schedule,
the Mortgage Loan is payable on the first day of each month. The Mortgage
Loan
does not require a balloon payment on its stated maturity date;
(u) Customary
Provisions.
The
Mortgage contains customary and enforceable provisions such as to render
the
rights and remedies of the holder thereof adequate for the realization
against
the Mortgaged Property of the benefits of the security provided thereby,
including, (i) in the case of a Mortgage designated as a deed of trust,
by
trustee’s sale, and (ii) otherwise by judicial foreclosure. Upon default by a
Mortgagor on a Mortgage Loan and foreclosure on, or trustee’s sale of, the
Mortgaged Property pursuant to the proper procedures, the holder of the
Mortgage
Loan will be able to deliver good and merchantable title to the Mortgaged
Property. There is no homestead or other exemption available to a Mortgagor
which would interfere with the right to sell the Mortgaged Property at
a
trustee’s sale or the right to foreclose the Mortgage, subject to applicable
federal and state laws and judicial precedent with respect to bankruptcy
and
right of redemption or similar law;
(v) Conformance
with Agency and Underwriting Guidelines.
The
Mortgage Loan was underwritten in accordance with the Underwriting Guidelines
(a
copy of which is attached to each related Assignment and Conveyance Agreement).
The Mortgage Note and Mortgage are on forms acceptable to Xxxxxxx Mac or
Xxxxxx
Mae and no representations have been made to a Mortgagor that are inconsistent
with the mortgage instruments used;
(w) Occupancy
of the Mortgaged Property.
As of
the related Closing Date the Mortgaged Property is lawfully occupied under
applicable law. All inspections, licenses and certificates required to
be made
or issued with respect to all occupied portions of the Mortgaged Property
and,
with respect to the use and occupancy of the same, including but not limited
to
certificates of occupancy and fire underwriting certificates, have been
made or
obtained from the appropriate authorities. Unless otherwise specified on
the
related Mortgage Loan Schedule, the Mortgagor represented at the time of
origination of the Mortgage Loan that the Mortgagor would occupy the Mortgaged
Property as the Mortgagor’s primary residence;
(x) No
Additional Collateral.
The
Mortgage Note is not and has not been secured by any collateral except
the lien
of the corresponding Mortgage and the security interest of any applicable
security agreement or chattel mortgage referred to in clause (j) above;
(y) Deeds
of Trust.
In the
event the Mortgage constitutes a deed of trust, a trustee, authorized and
duly
qualified under applicable law to serve as such, has been properly designated
and currently so serves and is named in the Mortgage, and no fees or expenses
are or will become payable by the Purchaser to the trustee under the deed
of
trust, except in connection with a trustee’s sale after default by the
Mortgagor;
(z) Acceptable
Investment.
There
are no circumstances or conditions with respect to the Mortgage, the Mortgaged
Property, the Mortgagor, the Mortgage File or the Mortgagor’s credit standing
that can reasonably be expected to cause private institutional investors
who
invest in prime mortgage loans similar to the Mortgage Loan to regard the
Mortgage Loan as an unacceptable investment;
(aa) Delivery
of Mortgage Documents.
The
Mortgage Note, the Mortgage, the Assignment of Mortgage and any other documents
required to be delivered under the Custodial Agreement for each Mortgage
Loan
have been delivered to the Custodian. The Seller is in possession of a
complete,
true and accurate Mortgage File in compliance with Exhibit 2 attached hereto,
except for such documents the originals of which have been delivered to
the
Custodian;
(bb) Georgia
Fair Lending Act.
There
is no Mortgage Loan that was originated on or after October 1, 2002 and
on or
prior to March 7, 2003, which is secured by property located in the State
of
Georgia;
(cc) Transfer
of Mortgage Loans.
The
Assignment of Mortgage (except with respect to any Mortgage that has been
recorded in the name of MERS or its designee) with respect to each Mortgage
Loan
is in recordable form and is acceptable for recording under the laws of
the
jurisdiction in which the Mortgaged Property is located;
(dd) Due-On-Sale.
With
respect to each Mortgage Loan, the Mortgage contains an enforceable provision
for the acceleration of the payment of the unpaid principal balance of
the
Mortgage Loan in the event that the Mortgaged Property is sold or transferred
without the prior written consent of the mortgagee thereunder, and such
provision is enforceable;
(ee) No
Buydown Provisions; No Graduated Payments or Contingent
Interests.
The
Mortgage Loan does not contain provisions pursuant to which Monthly Payments
are
paid or partially paid with funds deposited in any separate account established
by the Seller, the Mortgagor, or anyone on behalf of the Mortgagor, or
paid by
any source other than the Mortgagor nor does it contain any other similar
provisions which may constitute a “buydown” provision. The Mortgage Loan is not
a graduated payment mortgage loan and the Mortgage Loan does not have a
shared
appreciation or other contingent interest feature;
(ff) Consolidation
of Future Advances.
Any
future advances made to the Mortgagor prior to the applicable Cut-off Date
have
been consolidated with the outstanding principal amount secured by the
Mortgage,
and the secured principal amount, as consolidated, bears a single interest
rate
and single repayment term. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having first lien priority by
a title
insurance policy, an endorsement to the policy insuring the mortgagee’s
consolidated interest or by other title evidence acceptable to Xxxxxx Xxx
and
Xxxxxxx Mac. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(gg) Mortgaged
Property Undamaged; No Condemnation Proceedings.
There
is no proceeding pending or threatened for the total or partial condemnation
of
the Mortgaged Property. The Mortgaged Property is undamaged by waste, fire,
earthquake or earth movement, windstorm, flood, tornado or other casualty
so as
to affect adversely the value of the Mortgaged Property as security for
the
Mortgage Loan or the use for which the premises were intended and each
Mortgaged
Property is in good repair. There have not been any condemnation proceedings
with respect to the Mortgaged Property;
(hh) Collection
Practices; Escrow Deposits; Interest Rate Adjustments.
The
origination, servicing and collection practices used by the Seller and
the
Interim Servicer, if applicable, with respect to the Mortgage Loan have
been in
all respects in compliance with Accepted Servicing Practices, applicable
laws
and regulations, and have been in all respects legal and proper. With respect
to
escrow deposits and Escrow Payments, all such payments are in the possession
of,
or under the control of, the Seller or the Interim Servicer and there exist
no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. All Escrow Payments have been collected
in
full compliance with state and federal law and the provisions of the related
Mortgage Note and Mortgage. An escrow of funds is not prohibited by applicable
law and has been established in an amount sufficient to pay for every item
that
remains unpaid and has been assessed but is not yet due and payable. No
escrow
deposits or Escrow Payments or other charges or payments due the Seller
have
been capitalized under the Mortgage or the Mortgage Note. All Mortgage
Interest
Rate adjustments have been made in strict compliance with state and federal
law
and the terms of the related Mortgage and Mortgage Note on the related
Interest
Rate Adjustment Date. If, pursuant to the terms of the Mortgage Note, another
index was selected for determining the Mortgage Interest Rate, the same
index
was used with respect to each Mortgage Note which required a new index
to be
selected, and such selection did not conflict with the terms of the related
Mortgage Note. The Seller or the Interim Servicer executed and delivered
any and
all notices required under applicable law and the terms of the related
Mortgage
Note and Mortgage regarding the Mortgage Interest Rate and the Monthly
Payment
adjustments. Any interest required to be paid pursuant to state, federal
and
local law has been properly paid and credited;
(ii) Conversion
to Fixed Interest Rate.
The
Mortgage Loan does not contain a provision whereby the Mortgagor is permitted
to
convert the Mortgage Interest Rate from an adjustable rate to a fixed rate;
(jj) Other
Insurance Policies; No Defense to Coverage.
No
action, inaction or event has occurred and no state of facts exists or
has
existed on or prior to the Closing Date that has resulted or will result
in the
exclusion from, denial of, or defense to coverage under any applicable
hazard
insurance policy, PMI Policy or bankruptcy bond (including, without limitation,
any exclusions, denials or defenses which would limit or reduce the availability
of the timely payment of the full amount of the loss otherwise due thereunder
to
the insured), irrespective of the cause of such failure of coverage. In
connection with the placement of any such insurance, no commission, fee,
or
other compensation has been or will be received by the Seller or by any
officer,
director, or employee of the Seller or any designee of the Seller or any
corporation in which the Seller or any officer, director, or employee had
a
financial interest at the time of placement of such insurance;
(kk) No
Violation of Environmental Laws.
There
is no pending action or proceeding directly involving the Mortgaged Property
in
which compliance with any environmental law, rule or regulation is an issue;
there is no violation of any environmental law, rule or regulation with
respect
to the Mortgage Property; and nothing further remains to be done to satisfy
in
full all requirements of each such law, rule or regulation constituting
a
prerequisite to use and enjoyment of said property;
(ll) Servicemembers’
Civil Relief Act.
The
Mortgagor has not notified the Seller, and the Seller has no knowledge
of any
relief requested or allowed to the Mortgagor under the Servicemembers’ Civil
Relief Act of 1940 as amended, or other similar state statute;
(mm) Appraisal.
The
Mortgage File contains an appraisal of the related Mortgaged Property signed
prior to the approval of the Mortgage Loan application by a Qualified Appraiser,
duly appointed by the Seller, who had no interest, direct or indirect in
the
Mortgaged Property or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan, and the appraisal and appraiser both satisfy the requirements of
Xxxxxx
Xxx or Xxxxxxx Mac and Title XI of the Financial Institutions Reform, Recovery,
and Enforcement Act of 1989 and the regulations promulgated thereunder,
all as
in effect on the date the Mortgage Loan was originated;
(nn) Disclosure
Materials.
The
Mortgagor has executed a statement to the effect that the Mortgagor has
received
all disclosure materials required by, and the Seller has complied with,
all
applicable law with respect to the making of the Mortgage Loans. The Seller
shall maintain such statement in the Mortgage File;
(oo) Construction
or Rehabilitation of Mortgaged Property.
No
Mortgage Loan was made in connection with the construction (other than
a
“construct-to-perm” loan) or rehabilitation of a Mortgaged Property or
facilitating the trade-in or exchange of a Mortgaged Property;
(pp) Escrow
Analysis.
If
applicable, with respect to each Mortgage, the Seller has within the last
twelve
months (unless such Mortgage was originated within such twelve month period)
analyzed the required Escrow Payments for each Mortgage and adjusted the
amount
of such payments so that, assuming all required payments are timely made,
any
deficiency will be eliminated on or before the first anniversary of such
analysis, or any overage will be refunded to the Mortgagor, in accordance
with
RESPA and any other applicable law;
(qq) Credit
Information.
As to
each consumer report (as defined in the Fair Credit Reporting Act, Public
Law
91-508) or other credit information furnished by the Seller to the Purchaser,
that Seller has full right and authority and is not precluded by law or
contract
from furnishing such information to the Purchaser and the Purchaser is
not
precluded from furnishing the same to any subsequent or prospective purchaser
of
such Mortgage;
(rr) Leaseholds.
If the
Mortgage Loan is secured by a leasehold estate, (1) the ground lease is
assignable or transferable; (2) the ground lease will not terminate earlier
than
five years after the maturity date of the Mortgage Loan; (3) the ground
lease
does not provide for termination of the lease in the event of lessee’s default
without the mortgagee being entitled to receive written notice of, and
a
reasonable opportunity to cure the default; (4) the ground lease permits
the
mortgaging of the related Mortgaged Property; (5) the ground lease protects
the
mortgagee’s interests in the event of a property condemnation; (6) all ground
lease rents, other payments, or assessments that have become due have been
paid;
and (7) the use of leasehold estates for residential properties is a widely
accepted practice in the jurisdiction in which the Mortgaged Property is
located;
(ss) Prepayment
Penalty.
Each
Mortgage Loan that is subject to a prepayment penalty as provided in the
related
Mortgage Note is identified on the related Mortgage Loan Schedule. With
respect
to Mortgage Loans originated prior to October 1, 2002, no such Prepayment
Penalty may be imposed for a term in excess of five (5) years following
origination. With respect to Mortgage Loans originated on or after October
1,
2002, no such Prepayment Penalty may be imposed for a term in excess of
three
(3) years following origination;
(tt) Predatory
Lending Regulations.
No
Mortgage Loan is (a) a “high cost” loan under the Home Ownership and Equity
Protection Act of 1994, (b) a “high cost,” “threshold,” “covered” or “predatory”
or similar loan under any other applicable state, federal or local law
(or a
similarly classified loan using different terminology under a law imposing
heightened regulatory scrutiny or additional legal liability for residential
mortgage loans having high interest rates, points and/or fees), or (c)
a “high
cost” or “covered” mortgage loan, as applicable (as such terms are defined in
the then current Standard and Poor’s LEVELS Glossary which is now Version 6.0,
Appendix E);
(uu) Single-premium
Credit Life Insurance Policy.
In
connection with the origination of any Mortgage Loan, no proceeds from
such
Mortgage Loan were used to finance a single-premium credit life insurance
policy;
(vv) Qualified
Mortgage.
The
Mortgage Loan is a qualified mortgage under Section 860G(a)(3) of the
Code;
(ww) Origination.
No
predatory or deceptive lending practices, including, without limitation,
the
extension of credit without regard to the ability of the Mortgagor to repay
and
the extension of credit which has no apparent benefit to the Mortgagor,
were
employed in the origination of the Mortgage Loan;
(xx) Recordation.
Each
original Mortgage was recorded and all subsequent assignments of the original
Mortgage (other than the assignment to the Purchaser) have been recorded
in the
appropriate jurisdictions wherein such recordation is necessary to perfect
the
lien thereof as against creditors of the Seller, or is in the process of
being
recorded;
(yy) Co-op
Loans.
With
respect to a Mortgage Loan that is a Co-op Loan, the stock that is pledged
as
security for the Mortgage Loan is held by a person as a tenant stockholder
(as
defined in Section 216 of the Code) in a cooperative housing corporation
(as
defined in Section 216 of the Code);
(zz) Mortgagor
Bankruptcy.
On or
prior to the date 60 days after the related Closing Date, the Mortgagor
has not
filed and will not file a bankruptcy petition or has not become the subject
and
will not become the subject of involuntary bankruptcy proceedings or has
not
consented to or will not consent to the filing of a bankruptcy proceeding
against it or to a receiver being appointed in respect of the related Mortgaged
Property;
(aaa) New
York Anti-Predatory Lending Laws.
No
Mortgage Loan (a) is secured by property located in the State of New York;
(b)
had an original principal balance of $300,000 or less, and (c) has an
application date on or after April 1, 2003, the terms of which Mortgage
Loan
equal or exceed either the APR or points and fees threshold for “high-cost home
loans,” as defined in Section 6-L of the New York State Banking Law. Any breach
of this representation shall be deemed to materially and adversely affect
the
value of the Mortgage Loan and shall require a repurchase of the affected
Mortgage Loan. With respect to any Mortgage Loan the related Mortgaged
Property
of which is located in the City of New York, such Mortgage Loan was originated
prior to February 18, 2003;
(bbb) Points
and Fees.
All
points and fees related to each Mortgage Loan were disclosed in writing
to the
Mortgagor in accordance with applicable state and federal law and regulation.
Except in the case of a Mortgage Loan in an original principal amount of
less
than $60,000 which would have resulted in an unprofitable origination,
no
Mortgagor was charged “points and fees” (whether or not financed) in an amount
greater than 5% of the principal amount of such loan, such 5% limitation
is
calculated in accordance with Xxxxxx Mae’s anti-predatory lending requirements
as set forth in the Xxxxxx Xxx Selling Guide. All points and fees related
to
each Mortgage Loan are accurately described on the Mortgage Loan
Schedule;
(ccc) No
Mortgage Loan which is secured by property located in the State of New
Jersey is
a “High-Cost Home Loan” as defined in the New Jersey Home Ownership Act, which
became effective November 27, 2003;
(ddd) No
Mortgage Loan which is secured by property located in the State of New
Mexico is
a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act,
which became effective January 1, 2004;
(eee) No
Mortgage Loan which is secured by property located in the State of Kentucky
is a
“High-Cost Home Loan” as defined in the Kentucky House Xxxx 287, which became
effective June 24, 2003;
(fff)
No
Mortgage Loan which is secured by property located in the Commonwealth
of
Massachusetts is a "High Cost Home Mortgage Loan" as defined in the
Massachusetts Predatory Home Loan Practices Act (Mass. Xxx. Laws ch. 183C)
which
became effective November 7, 2004;
(ggg)
No
Mortgage Loan that is secured by property located in the State of Illinois
is a
"High-Risk Home Loan" as defined in the Illinois High Risk Home Loan Act
effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et seq.); and none
of the
Mortgage Loans that are secured by property located in the State of Illinois
are
in violation of the provisions of the Illinois Interest Act (815 Ill. Comp.
Stat. 205/1 et. seq.);
(hhh) No
Mortgage Loan that is secured by property located in the State of Indiana
is a
"High Cost Home Loan" as defined in Indiana’s Home Loan Practices Act (I.C.
24-9), which became effective January 1, 2005; and
(iii) There
were no
adverse selection procedures used in selecting the Mortgage Loan from among
the
residential mortgage loans which were available for inclusion in the Mortgage
Loans.
XII.
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With
respect to Mortgage Loans purchased under the Seller’s Warranties and
Servicing Agreement, dated as of June 1, 2007 (WFHM 2007-W24)
by and
between Redwood Trust, Inc. and Xxxxx Fargo Bank, N.A. (the "Redwood-Xxxxx
Fargo Agreement")
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With
respect to each Mortgage Loan, RWT Holdings hereby makes the following
representations and warranties. Such representations and warranties speak
as of
the Closing Date with respect to the Mortgage Loans (as such capitalized
terms
are defined in the Pooling and Servicing Agreement), unless otherwise indicated.
Capitalized terms are as defined in this Schedule A or in the Redwood-Xxxxx
Fargo Agreement.
(a)
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Mortgage
Loans as Described.
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The
information set forth in the Mortgage Loan Schedule attached hereto as
Exhibit A
and the information contained on the Data File Fields contained on the
Data File
delivered to the Purchaser are true and correct; provided that the Company
makes
no representation or warranty as to the accuracy of Unverified Information;
and
the
information provided to the rating agencies, including the loan level detail,
is
true and correct according to the rating agency requirements;
(b)
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Payments
Current.
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All
payments required to be made up to the Cut-off Date for the Mortgage Loan
under
the terms of the Mortgage Note have been made and credited. No payment
under any
Mortgage Loan has been thirty (30) days delinquent more than one (1) time
within
twelve (12) months prior to the Closing Date;
(c)
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No
Outstanding Charges.
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There
are
no defaults in complying with the terms of the Mortgages, and all taxes,
governmental assessments, insurance premiums, leasehold payments, water,
sewer
and municipal charges, which previously became due and owing have been
paid, or
an escrow of funds has been established in an amount sufficient to pay
for every
such item which remains unpaid and which has been assessed but is not yet
due
and payable. The Company has not advanced funds, or induced, or solicited
directly or indirectly, the payment of any amount required under the Mortgage
Loan, except for interest accruing from the date of the Mortgage Note or
date of
disbursement of the Mortgage Loan proceeds, whichever is later, to the
day which
precedes by one month the Due Date of the first installment of principal
and
interest;
(d)
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Original
Terms Unmodified.
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The
terms
of the Mortgage Note and Mortgage have not been impaired, waived, altered
or
modified in any respect, except by a written instrument which has been
recorded
or registered with the MERS System, if necessary, to protect the interests
of
the Purchaser and is retained by the Company in the Retained Mortgage File;
and
the related Mortgage Note which has been delivered to the Custodian. The
substance of any such waiver, alteration or modification has been approved
by
the issuer of any related PMI Policy and the title insurer, to the extent
required by the policy, and its terms are reflected on the related Mortgage
Loan
Schedule. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement approved by the issuer of any related
PMI Policy and the title insurer, to the extent required by the policy,
and
which assumption agreement is part of the Custodial Mortgage File delivered
to
the Custodian and the terms of which are reflected in the related Mortgage
Loan
Schedule;
(e)
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No
Defenses.
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The
Mortgage Loan is not subject to any right of rescission, set-off,
counterclaim
or
defense, including without limitation the defense of usury, nor will
the
operation
of any of the terms of the Mortgage Note or the Mortgage, or the
exercise
of any right thereunder, render either the Mortgage Note or the
Mortgage
unenforceable,
in whole or in part, or subject to any right of rescission,
set-off,
counterclaim
or defense, including without limitation the defense of usury, and
no
such
right of rescission, set-off, counterclaim or defense has been asserted
with
respect
thereto;
(f)
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No
Satisfaction of Mortgage.
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The
Mortgage has not been satisfied, canceled, subordinated or rescinded,
in
whole
or
in part, and the Mortgaged Property has not been released from the
lien
of
the
Mortgage, in whole or in part, nor has any instrument been executed
that
would
effect any such satisfaction, release, cancellation, subordination
or
rescission;
(g)
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Validity
of Mortgage Documents.
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The
Mortgage Note and the Mortgage and related documents are genuine, and each
is
the legal, valid and binding obligation of the maker thereof enforceable
in
accordance with its terms. All parties to the Mortgage Note and the Mortgage
had
legal capacity to enter into the Mortgage Loan and to execute and deliver
the
Mortgage Note and the Mortgage, and the Mortgage Note and the Mortgage
have been
duly and properly executed by such parties. The Company has reviewed all
documents constituting the Retained Mortgage File and Custodial Mortgage
File
and has made such inquiries as it deems necessary to make and confirm the
accuracy of the representations set forth herein;
With
respect to each Cooperative Loan, the Mortgage Note, the Mortgage, the
Pledge
Agreement, and related documents are genuine, and each is the legal, valid
and
binding obligation of the maker thereof enforceable in accordance with
its
terms. All parties to the Mortgage Note, the Mortgage, the Pledge Agreement,
the
Proprietary Lease, the Stock Power, Recognition Agreement and the Assignment
of
Proprietary Lease had legal capacity to enter into the Mortgage Loan and
to
execute and deliver such documents, and such documents have been duly and
properly executed by such parties;
(h)
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No
Fraud.
|
No
error,
omission, misrepresentation, negligence, fraud or similar occurrence with
respect to a Mortgage Loan has taken place on the part of the Company,
or the
Mortgagor (except with respect to the accuracy of Unverified Information),
or to
the best of the Company’s knowledge, any appraiser, any builder, or any
developer, or any other party involved in the origination of the Mortgage
Loan
or in the application of any insurance in relation to such Mortgage
Loan;
(i)
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Compliance
with Applicable Laws.
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Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures,
consumer
credit protection and privacy, equal credit opportunity, disclosure or
predatory
and abusive lending laws applicable to the Mortgage Loan have been complied
with. All inspections, licenses and certificates required to be made or
issued
with respect to all occupied portions of the Mortgaged Property and, with
respect to the use and occupancy of the same, including, but not limited
to,
certificates of occupancy and fire underwriting certificates, have been
made or
obtained from the appropriate authorities;
(j)
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Location
and Type of Mortgaged Property.
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The
Mortgaged Property is located in the state identified in the related Mortgage
Loan Schedule and consists of a contiguous parcel of real property with
a
detached single family residence erected thereon, or a two- to four-family
dwelling, or an individual condominium unit in a condominium project, or
a
Cooperative Apartment, or an individual unit in a planned unit development
or a
townhouse, provided, however, that any condominium project or planned unit
development shall conform to the applicable Xxxxxx Xxx or Xxxxxxx Mac
requirements, the Company Underwriting Guidelines (other than the exception
identified for Exception Mortgage Loans) or the Third-Party Underwriting
Guidelines, as applicable, regarding such dwellings, and no residence or
dwelling is a mobile home or manufactured dwelling. As of the respective
appraisal date for each Mortgaged Property, any Mortgaged Property being
used
for commercial purposes conforms to the Company Underwriting Guidelines
(other
than the exception identified for Exception Mortgage Loans) or the Third-Party
Underwriting Guidelines, as applicable and, to the best of the Company’s
knowledge, since the date of such appraisal, no portion of the Mortgaged
Property was being used for commercial purposes outside of the Company
Underwriting Guidelines (other than the exception identified for Exception
Mortgage Loans) or the Third-Party Underwriting Guidelines, as
applicable;
(k)
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Valid
First Lien.
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The
Mortgage is a valid, subsisting and enforceable first lien on the Mortgaged
Property, including all buildings on the Mortgaged Property and all
installations and mechanical, electrical, plumbing, heating and air conditioning
systems located in or annexed to such buildings, and all additions, alterations
and replacements made at any time with respect to the foregoing. The lien
of the
Mortgage is subject only to:
(1)
|
the
lien of current real property taxes and assessments not yet due
and
payable;
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(2)
|
covenants,
conditions and restrictions, rights of way, easements and other
matters of
the public record as of the date of recording acceptable to mortgage
lending institutions generally and specifically referred to in
the
lender's title insurance policy delivered to the originator of
the
Mortgage Loan and (i) referred to or otherwise considered in
the appraisal
made for the originator of the Mortgage Loan and (ii) which do
not
adversely affect the Appraised Value of the Mortgaged Property
set forth
in such appraisal; and
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(3)
|
other
matters to which like properties are commonly subject which do
not
materially interfere with the benefits of the security intended
to be
provided by the mortgage or the use, enjoyment, value or marketability
of
the related Mortgaged Property.
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Any
security agreement, chattel mortgage or equivalent document related to
and
delivered in connection with the Mortgage Loan establishes and creates
a valid,
subsisting and enforceable first lien and first priority security interest
on
the property described therein and the Company has full right to sell and
assign
the same to the Purchaser;
With
respect to each Cooperative Loan, each Pledge Agreement creates a valid,
enforceable and subsisting first security interest in the Cooperative Shares
and
Proprietary Lease, subject only to (i) the lien of the related Cooperative
for
unpaid assessments representing the Mortgagor’s pro rata share of the
Cooperative’s payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other assessments
to
which like collateral is commonly subject and (ii) other matters to which
like
collateral is commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Pledge Agreement;
provided, however, that the appurtenant Proprietary Lease may be subordinated
or
otherwise subject to the lien of any mortgage on the Project;
(l)
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Full
Disbursement of Proceeds.
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The
proceeds of the Mortgage Loan have been fully disbursed, except for escrows
established or created due to seasonal weather conditions, and there is
no
requirement for future advances thereunder. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any refund of
any
amounts paid or due under the Mortgage Note or Mortgage;
(m)
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Consolidation
of Future Advances.
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Any
future advances made prior to the Cut-off Date, have been consolidated
with the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment
term
reflected on the related Mortgage Loan Schedule. The lien of the Mortgage
securing the consolidated principal amount is expressly insured as having
first
lien priority by a title insurance policy, an endorsement to the policy
insuring
the mortgagee’s consolidated interest or by other title evidence acceptable to
Xxxxxx Mae or Xxxxxxx Mac; the consolidated principal amount does not exceed
the
original principal amount of the Mortgage Loan; the Company shall not make
future advances after the Cut-off Date;
(n)
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Ownership.
|
The
Company is the sole owner of record and holder of the Mortgage Loan and
the
related Mortgage Note and the Mortgage are not assigned or pledged, and
the
Company has good and marketable title thereto and has full right and authority
to transfer and sell the Mortgage Loan to the Purchaser. The Company is
transferring the Mortgage Loan free and clear of any and all encumbrances,
liens, pledges, equities, participation interests, claims, charges or security
interests of any nature encumbering such Mortgage Loan;
(o) Origination/Doing
Business.
The
Mortgage Loan was originated by a savings and loan association, a savings
bank,
a
commercial bank, a credit union, an insurance company, or similar institution
that is supervised and examined by a federal or state authority or by a
mortgagee
approved by the Secretary of Housing and Urban Development pursuant
to Sections 203 and 211 of the National Housing Act. All parties which
have
had
any interest in the Mortgage Loan, whether as mortgagee, assignee, pledgee
or otherwise, are (or, during the period in which they held and disposed
of
such
interest, were) (1) in compliance with any and all applicable licensing
requirements
of the laws of the state wherein the Mortgaged Property is located, and
(2)
organized under the laws of such state, or (3) qualified to do business
in
such
state, or (4) federal savings and loan associations or national banks having
principal
offices in such state, or (5) not doing business in such state;
(p)
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LTV,
PMI Policy.
|
No
Mortgage Loan has an LTV greater than 95%. Except as set forth on the related
Data File, each Mortgage Loan with an LTV greater than 80% at the time
of
origination, a portion of the unpaid principal balance of the Mortgage
Loan is
and will be insured as to payment defaults by a PMI Policy. If the Mortgage
Loan
is insured by a PMI Policy which is not an LPMI Policy, the coverage will
remain
in place until (i) the LTV decreases to 78% or (ii) the PMI Policy is otherwise
terminated pursuant to the Homeowners Protection Act of 1998, 12 USC §4901, et
seq. All provisions of such PMI Policy or LPMI Policy have been and are
being
complied with, such policy is in full force and effect, and all premiums
due
thereunder have been paid. The Qualified Insurer has a claims paying ability
acceptable to Xxxxxx Mae or Xxxxxxx Mac. Any Mortgage Loan subject to a
PMI
Policy or LPMI Policy obligates the Mortgagor or the Company to maintain
the PMI
Policy or LPMI Policy, as applicable, and to pay all premiums and charges
in
connection therewith. The Mortgage Interest Rate for the Mortgage Loan
as set
forth on the related Mortgage Loan Schedule is net of any such
insurance
premium;
(q)
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Title
Insurance.
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The
Mortgage Loan is covered by an ALTA lender's title insurance policy (or
in the
case of any Mortgage Loan secured by a Mortgaged Property located in a
jurisdiction where such policies are generally not available, an opinion
of
counsel of the type customarily rendered in such jurisdiction in lieu of
title
insurance) or other generally acceptable form of policy of insurance acceptable
to Xxxxxx Xxx or Xxxxxxx Mac, issued by a title insurer acceptable to Xxxxxx
Mae
or Xxxxxxx Mac and qualified to do business in the jurisdiction where the
Mortgaged Property is located, insuring the Company, its successors and
assigns,
as to the first priority lien of the Mortgage in the original principal
amount
of the Mortgage Loan, subject only to the exceptions contained in clauses
(1),
(2) and (3) of subclause (k) of this Section 3.02, and against any loss
by
reason of the invalidity or unenforceability of the lien resulting from
the
provisions of the Mortgage providing for adjustment to the Mortgage Interest
Rate and Monthly Payment. The Company is the sole insured of such lender's
title
insurance policy, and such lender's title insurance policy is in full force
and
effect and will be in force and effect upon the consummation of the transactions
contemplated by the Redwood-Xxxxx Fargo Agreement. No claims have been
made
under such lender's title insurance policy, and no prior holder of the
Mortgage,
including the Company, has done, by act or omission, anything which would
impair
the coverage of such lender's title insurance policy;
(r)
|
No
Defaults.
|
There
is
no default, breach, violation or event of acceleration existing under the
Mortgage or the Mortgage Note and no event which, with the passage of time
or
with notice and the expiration of any grace or cure period, would constitute
a
default, breach, violation or event of acceleration, and neither the Company
nor
its predecessors have waived any default, breach, violation or event of
acceleration;
(s)
|
No
Mechanics' Liens.
|
There
are
no mechanics' or similar liens or claims which have been filed for work,
labor
or material (and no rights are outstanding that under the law could give
rise to
such liens) affecting the related Mortgaged Property which are or may be
liens
prior to, or equal or coordinate with, the lien of the related Mortgage
which
are not insured against by the title insurance policy referenced in subclause
(q) of Section 3.02 of the Redwood-Xxxxx Fargo Agreement;
(t)
|
Location
of Improvements; No Encroachments.
|
Except
as
insured against by the title insurance policy referenced in subclause (q)
of
Section 3.02 of the Redwood-Xxxxx Fargo Agreement, all improvements which
were
considered in determining the Appraised Value of the Mortgaged Property
lay
wholly within the boundaries and building restriction lines of the Mortgaged
Property and no improvements on adjoining properties encroach upon the
Mortgaged
Property. No improvement located on or being part of the Mortgaged Property
is
in violation of any applicable zoning law or regulation;
(u)
|
Payment
Terms.
|
Except
with respect to the Interest Only Mortgage Loans, principal payments commenced
no more than sixty (60) days after the funds were disbursed to the Mortgagor
in
connection with the Mortgage Loan. Except with respect to the Interest
Only
Mortgage Loans, each Mortgage Loan is payable in equal monthly installments
of
principal and interest, with interest calculated and payable in arrears,
sufficient to amortize the Mortgage Loan fully by the stated maturity date
set
forth in the Mortgage Note over an original term to maturity of not more
than
thirty (30) years. As to each Adjustable Rate Mortgage Loan on each applicable
Adjustment Date, the Mortgage Interest Rate will be adjusted to equal the
sum of
the Index plus the applicable Gross Margin, rounded up or down to the nearest
multiple of 0.125% indicated by the Mortgage Note; provided that the Mortgage
Interest Rate will not increase or decrease by more than the Periodic Interest
Rate Cap on any Adjustment Date, and will in no event exceed the Maximum
Mortgage Interest Rate or be lower than the Minimum Mortgage Interest Rate
listed on the Mortgage Note for such Mortgage Loan. As to each Adjustable
Rate
Mortgage Loan that is not an Interest Only Mortgage Loan, each Mortgage
Note
requires a monthly payment which is sufficient, during the period prior
to the
first adjustment to the Mortgage Interest Rate, to fully amortize the
outstanding principal balance as of the first day of such period over the
then
remaining term of such Mortgage Note and to pay interest at the related
Mortgage
Interest Rate. With respect to each Interest Only Mortgage Loan, the
interest-only period shall not exceed fifteen (15) years (or such other
period
specified on the related Data File) and following the expiration of such
interest-only period, the remaining Monthly Payments shall be sufficient
to
fully amortize the original principal balance over the remaining term of
the
Mortgage Loan and to pay interest at the related Mortgage Interest Rate.
As to
each Adjustable Rate Mortgage Loan, if the related Mortgage Interest Rate
changes on an Adjustment Date or, with respect to an Interest Only Mortgage
Loan, on an Adjustment Date following the related interest-only period,
the then
outstanding principal balance will be reamortized over the remaining life
of
such Mortgage Loan. No Adjustable Rate Mortgage Loan contains terms or
provisions which would result in negative amortization;
(v)
|
Customary
Provisions.
|
The
Mortgage and related Mortgage Note contain customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate
for the
realization against the Mortgaged Property of the benefits of the security
provided thereby, including, (i) in the case of a Mortgage designated as
a deed
of trust, by trustee's sale, and (ii) otherwise by judicial foreclosure.
There
is no homestead or other exemption available to a Mortgagor which would
interfere with the right to sell the Mortgaged Property at a trustee's
sale or
the right to foreclose the Mortgage;
(w)
|
Occupancy
of the Mortgaged Property.
|
As
of the
date of origination, the Mortgaged Property was lawfully occupied under
applicable law;
(x)
|
No
Additional Collateral.
|
Except
in
the case of a Pledged Asset Mortgage Loan and as indicated on the related
Data
File, the Mortgage Note is not and has not been secured by any collateral,
pledged account or other security except the lien of the corresponding
Mortgage
and the security interest of any applicable security agreement or chattel
mortgage referred to in subclause (k) of Section 3.02 of the Redwood-Xxxxx
Fargo
Agreement;
(y)
|
Deeds
of Trust.
|
In
the
event the Mortgage constitutes a deed of trust, a trustee, duly qualified
under
applicable law to serve as such, has been properly designated and currently
so
serves and is named in the Mortgage, and no fees or expenses are or will
become
payable by the mortgagee to the trustee under the deed of trust, except
in
connection with a trustee's sale after default by the Mortgagor;
(z)
|
Acceptable
Investment.
|
The
Company has no knowledge of any circumstances or conditions with respect
to the
Mortgage Loan, the Mortgaged Property, the Mortgagor or the Mortgagor's
credit
standing that can reasonably be expected to cause private institutional
investors to regard the Mortgage Loan as an unacceptable investment, cause
the
Mortgage Loan to become delinquent, or adversely affect the value or
marketability of the Mortgage Loan;
(aa)
|
Transfer
of Mortgage Loans.
|
If
the
Mortgage Loan is not a MERS Mortgage Loan, the Assignment of Mortgage,
upon the
insertion of the name of the assignee and recording information, is in
recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located;
(bb)
|
Mortgaged
Property Undamaged.
|
The
Mortgaged Property is undamaged by waste, fire, earthquake or earth movement,
windstorm, flood, tornado or other casualty so as to affect adversely the
value
of the Mortgaged Property as security for the Mortgage Loan or the use
for which
the premises were intended;
(cc)
|
Collection
Practices; Escrow Deposits.
|
The
origination, servicing and collection practices used with respect to the
Mortgage Loan have been in accordance with Accepted Servicing Practices,
and
have been in all material respects legal and proper. With respect to escrow
deposits and Escrow Payments, all such payments are in the possession of
the
Company and there exist no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made. All Escrow
Payments have been collected in full compliance with state and federal
law. No
escrow deposits or Escrow Payments or other charges or payments due the
Company
have been capitalized under the Mortgage Note;
(dd)
|
No
Condemnation.
|
There
is
no proceeding pending or to the best of the Company’s knowledge threatened for
the total or partial condemnation of the related Mortgaged
Property;
(ee)
|
The
Appraisal.
|
The
Servicing File for each Mortgage Loan includes an appraisal of the related
Mortgaged Property. As to each Time$aver® Mortgage Loan, the appraisal may be
from the original of the existing Company-serviced loan, which was refinanced
via such Time$aver® Mortgage Loan. The appraisal was conducted by an appraiser
who had no interest, direct or indirect, in the Mortgaged Property or in
any
loan made on the security thereof; and whose compensation is not affected
by the
approval or disapproval of the Mortgage Loan, and the appraisal and the
appraiser both satisfy the applicable requirements of Title XI of the Financial
Institution Reform, Recovery, and Enforcement Act of 1989 and the regulations
promulgated thereunder, all as in effect on the date the Mortgage Loan
was
originated;
(ff)
|
Insurance.
|
The
Mortgaged Property securing each Mortgage Loan is insured by an insurer
acceptable to Xxxxxx Xxx or Xxxxxxx Mac against loss by fire and such hazards
as
are covered under a standard extended coverage endorsement and such other
hazards as are customary in the area where the Mortgaged Property is located
pursuant to insurance policies conforming to the requirements of Section
4.10,
in an amount which is at least equal to the lesser of (i) 100% of the insurable
value, on a replacement cost basis, of the improvements on the related
Mortgaged
Property and (ii) the greater of (a) the outstanding principal balance
of the
Mortgage Loan or (b) an amount such that the proceeds of such insurance
shall be
sufficient to prevent the application to the Mortgagor or the loss payee
of any
coinsurance clause under the policy. If the Mortgaged Property is a condominium
unit, it is included under the coverage afforded by a blanket policy for
the
project. If the improvements on the Mortgaged Property are in an area identified
in the Federal Register by the Federal Emergency Management Agency as having
special flood hazards, a flood insurance policy meeting the requirements
of the
current guidelines of the Federal Insurance Administration is in effect
with a
generally acceptable insurance carrier, in an amount representing coverage
not
less than the least of (A) the outstanding principal balance of the Mortgage
Loan, (B) the full insurable value and (C) the maximum amount of insurance
which
was available under the Flood Disaster Protection Act of 1973, as amended.
All
individual insurance policies contain a standard mortgagee clause naming
the
Company and its successors and assigns as mortgagee, and all premiums thereon
have been paid. The Mortgage obligates the Mortgagor thereunder to maintain
a
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 to
obtain
and maintain such insurance at such Mortgagor's cost and expense, and to
seek
reimbursement therefor from the Mortgagor. The hazard insurance policy
is the
valid and 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 Purchaser
upon
the consummation of the transactions contemplated by the Redwood-Xxxxx
Fargo
Agreement. The Company has not acted or failed to act so as to impair the
coverage of any such insurance policy or the validity, binding effect and
enforceability thereof;
(gg)
|
Servicemembers
Civil Relief Act.
|
The
Mortgagor has not notified the Company, and the Company has no knowledge
of any
relief requested or allowed to the Mortgagor under the Servicemembers Civil
Relief Act, as amended;
(hh)
|
No
Balloon Payments, Graduated Payments or Contingent
Interests.
|
The
Mortgage Loan is not a graduated payment mortgage loan and the Mortgage
Loan
does not have a shared appreciation or other contingent interest feature.
No
Mortgage Loan has a balloon payment feature;
(ii)
|
No
Construction Loans.
|
No
Mortgage Loan was made in connection with (i) the construction or rehabilitation
of a Mortgage Property or (ii) facilitating the trade-in or exchange of
a
Mortgaged Property other than a construction-to-permanent loan which has
converted to a permanent Mortgage Loan;
(jj)
|
Underwriting.
|
(i)
|
Each
Company Mortgage Loan was underwritten in accordance with the
Company
Underwriting Guidelines;
|
(ii)
|
Each
Third-Party Mortgage Loan was underwritten in accordance with
the
Third-Party Underwriting
Guidelines;
|
(iii)
|
Each
Exception Mortgage Loan was underwritten in accordance with the
Company
Underwriting Guidelines; and
|
(iv)
|
Each
Mortgage Note and Mortgage are on forms acceptable to Xxxxxxx
Mac or
Xxxxxx Mae;
|
(kk)
|
No
Bankruptcy.
|
No
Mortgagor was a debtor in any state or federal bankruptcy or insolvency
proceeding at the time the Mortgage Loan was originated and as of the Closing
Date, the Company has not received notice that any Mortgagor is a debtor
under
any state or federal bankruptcy or insolvency proceeding;
(ll)
|
The
Mortgagor.
|
The
Mortgagor is one or more natural Persons and/or an Illinois land trust
or a
“living trust” and such “living trust” is in compliance with the Company
Underwriting Guidelines (other than the exception identified for Exception
Mortgage Loans) or the Third-Party Underwriting Guidelines, as
applicable;
(mm)
|
Interest
Calculation.
|
Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
(nn)
|
Environmental
Status.
|
There
is
no pending action or proceeding directly involving the Mortgaged Property
of
which the Company is aware in which compliance with any environmental law,
rule
or regulation is an issue; and to the best of the Company’s knowledge, nothing
further remains to be done to satisfy in full all requirements of each
such law,
rule or regulation constituting a prerequisite to the use and enjoyment
of the
Mortgaged Property;
(oo)
|
No
High Cost Loans.
|
No
Mortgage Loan is a High Cost Loan or Covered Loan;
(pp)
|
Anti-Money
Laundering Laws.
|
The
Company has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot ACT of 2001
(collectively, the “Anti-Money Laundering Laws”); the Company has established an
anti-money laundering compliance program as required by the Anti-Money
Laundering Laws, has conducted the requisite due diligence in connection
with
the origination of each Mortgage Loan for purposes of the Anti-Money Laundering
Laws, including with respect to the identity of the applicable Mortgagor
and the
origin of assets used by the said Mortgagor to purchase the related Mortgaged
Property, and maintains sufficient information to identify the applicable
Mortgagor for purposes of the Anti-Money Laundering Laws;
(qq)
|
Single
Premium Credit Life Insurance.
|
No
Mortgagor was required to purchase any single premium credit insurance
policy
(e.g. life, disability, accident, unemployment or health insurance product)
or
debt cancellation agreement as a condition of obtaining the extension of
credit.
No Mortgagor obtained a prepaid single premium credit insurance policy
(e.g.
life, disability, accident, unemployment or health insurance product) as
part of
the origination of the Mortgage Loan. No proceeds from any Mortgage Loan
were
used to purchase single premium credit insurance policies or debt cancellation
agreements as part of the origination of, or as a condition to closing,
such
Mortgage Loan;
(rr)
|
Buydown
Mortgage Loans.
|
With
respect to each Mortgage Loan that is a Buydown Mortgage Loan:
(i)
|
On
or before the date of origination of such Mortgage Loan, the
Company and
the Mortgagor, or the Company, the Mortgagor and the seller of
the
Mortgaged Property or a third party entered into a Buydown Agreement.
The
Buydown Agreement provides that the seller of the Mortgaged Property
(or
third party) shall deliver to the Company temporary Buydown Funds
in an
amount equal to the aggregate undiscounted amount of payments
that, when
added to the amount the Mortgagor on such Mortgage Loan is obligated
to
pay on each Due Date in accordance with the terms of the Buydown
Agreement, is equal to the full scheduled Monthly Payment due
on such
Mortgage Loan. The temporary Buydown Funds enable the Mortgagor
to qualify
for the Buydown Mortgage Loan. The effective interest rate of
a Buydown
Mortgage Loan if less than the interest rate set forth in the
related
Mortgage Note will increase within the Buydown Period as provided
in the
related Buydown Agreement so that the effective interest rate
will be
equal to the interest rate as set forth in the related Mortgage
Note. The
Buydown Mortgage Loan satisfies the requirements of the Company
Underwriting Guidelines (other than the exception identified
for Exception
Mortgage Loans) or the Third-Party Underwriting Guidelines, as
applicable;
|
(ii)
|
The
Mortgage and Mortgage Note reflect the permanent payment terms
rather than
the payment terms of the Buydown Agreement. The Buydown Agreement
provides
for the payment by the Mortgagor of the full amount of the Monthly
Payment
on any Due Date that the Buydown Funds are available. The Buydown
Funds
were not used to reduce the original principal balance of the
Mortgage
Loan or to increase the Appraised Value of the Mortgage Property
when
calculating the Loan-to-Value Ratios for purposes of the Agreement
and, if
the Buydown Funds were provided by the Company and if required
under the
Company Underwriting Guidelines (other than the exception identified
for
Exception Mortgage Loans) or the Third-Party Underwriting Guidelines,
as
applicable, the terms of the Buydown Agreement were disclosed
to the
appraiser of the Mortgaged
Property;
|
(iii)
|
The
Buydown Funds may not be refunded to the Mortgagor unless the
Mortgagor
makes a principal payment for the outstanding balance of the
Mortgage
Loan;
|
(iv)
|
As
of the date of origination of the Mortgage Loan, the provisions
of the
related Buydown Agreement complied with the requirements of the
Company
Underwriting Guidelines (other than the exception identified
for Exception
Mortgage Loans) or the Third-Party Underwriting Guidelines, as
applicable,
regarding buydown agreements;
|
(ss)
|
Cooperative
Loans.
|
With
respect to each Cooperative Loan:
(i)
|
The
Cooperative Shares are held by a Person as a tenant-stockholder
in a
Cooperative. Each original UCC financing statement, continuation
statement
or other governmental filing or recordation necessary to create
or
preserve the perfection and priority of the first lien and security
interest in the Cooperative Loan and Proprietary Lease has been
timely and
properly made. Any security agreement, chattel mortgage or equivalent
document related to the Cooperative Loan and delivered to Purchaser
or its
designee establishes in Purchaser a valid and subsisting perfected
first
lien on and security interest in the Mortgaged Property described
therein,
and Purchaser has full right to sell and assign the same. The
Proprietary
Lease term expires no less than five years after the Mortgage
Loan term or
such other term acceptable to Xxxxxx Xxx, Xxxxxxx Mac, the Company
Underwriting Guidelines (other than the exception identified
for Exception
Mortgage Loans) or the Third-Party Underwriting Guidelines, as
applicable;
|
(ii)
|
A
Cooperative Lien Search has been made by a company competent
to make the
same which company is acceptable to Xxxxxx Mae or Xxxxxxx Mac
and
qualified to do business in the jurisdiction where the Cooperative
is
located;
|
(iii)
|
(a)
The term of the related Proprietary Lease is not less than the
terms of
the Cooperative Loan; (b) there is no provision in any Proprietary
Lease
which requires the Mortgagor to offer for sale the Cooperative
Shares
owned by such Mortgagor first to the Cooperative; (c) there is
no
prohibition in any Proprietary Lease against pledging the Cooperative
Shares or assigning the Proprietary Lease; (d) the Cooperative
has been
created and exists in full compliance with the requirements for
residential cooperatives in the jurisdiction in which the Project
is
located and qualifies as a cooperative housing corporation under
Section
216 of the Code; (e) the Recognition Agreement is on a form published
by
Aztech Document Services, Inc. or includes similar provisions;
and (f) the
Cooperative has good and marketable title to the Project, and
owns the
Project either in fee simple or under a leasehold that complies
with the
requirements of the Xxxxxx Mae guidelines, Xxxxxxx Mac guidelines,
the
Company Underwriting Guidelines (other than the exception identified
for
Exception Mortgage Loans) or the Third-Party Underwriting Guidelines,
as
applicable; such title is free and clear of any adverse liens
or
encumbrances, except the lien of any blanket
mortgage;
|
(iv)
|
The
Company has the right under the terms of the Mortgage Note, Pledge
Agreement and Recognition Agreement to pay any maintenance charges
or
assessments owed by the Mortgagor;
and
|
(v)
|
Each
Stock Power (i) has all signatures guaranteed or (ii) if all
signatures
are not guaranteed, then such Cooperative Shares will be transferred
by
the stock transfer agent of the Cooperative if the Company undertakes
to
convert the ownership of the collateral securing the related
Cooperative
Loan;
|
(tt)
|
Delivery
of Custodial Mortgage Files.
|
The
Mortgage Note, Assignment of Mortgage and any other documents required
to be
delivered by the Company have been delivered to the Custodian in accordance
with
the Redwood-Xxxxx Fargo Agreement. The Company is in possession of a complete,
true and accurate Retained Mortgage File in compliance with Exhibit C,
except
for such documents the originals of which have been delivered to the Custodian
or for such documents where the originals of which have been sent for
recordation;
(uu)
|
Credit
Reporting.
|
With
respect to each Mortgage Loan, the Company has furnished complete information
on
the related borrower credit files to Equifax, Experian and Trans Union
Credit
Information Company, in accordance with the Fair Credit Reporting Act and
its
implementing regulations;
(vv)
|
Contents
of Retained Mortgage File.
|
The
Retained Mortgage File contains the Mortgage Loan Documents listed as items
6
through 12 of Exhibit C attached to the Redwood-Xxxxx Fargo Agreement,
except
for such documents where the originals of which have been sent for
recordation;
(ww)
|
Pledged
Asset Mortgage Loan.
|
With
respect to a Pledged Asset Mortgage Loan:
(i)
|
The
Pledge Holder has a rating of at least “AA” (or the equivalent) or better
from at least two Rating Agencies and the Pledge Holder is obligated
to
give the beneficiary of each Letter of Credit at least sixty
(60) days
notice of any non-renewal of any Letter of
Credit;
|
(ii)
|
With
respect to each Pledged Asset Mortgage Loan, the Company is the
named
beneficiary and no Person has drawn any funds against such Letter
of
Credit;
|
(iii)
|
Each
Letter of Credit is for an amount at least equal to an LTV of
20% of the
lower of the purchase price or the Appraised Value of the related
Mortgaged Property;
|
(iv)
|
As
of the Closing Date, the Company has complied with all the requirements
of
any Letter of Credit, and each Letter of Credit is a valid and
enforceable
obligation of the Pledge Holder;
|
(v)
|
The
Company has the right to draw on each Letter of Credit if the
related
Pledged Asset Mortgage Loan becomes ninety (90) days or more
delinquent
and to apply such proceeds as a partial prepayment
thereon;
|
(vi)
|
The
Company has not received notice of any non-renewal of any Letter
of
Credit;
|
(vii)
|
Upon
a default by the Pledge Holder, the Company will have a perfected
first
priority security interest in the assets pledged to secure the
Letter of
Credit and has the right to obtain possession thereof and the
right to
liquidate such assets and apply the proceeds thereof to prepay
the related
Pledged Asset Mortgage Loan; and
|
(viii)
|
The
Letter of Credit is required to be in effect (either for its
original term
or through renewal) until such time as all amounts owed under
the related
Pledged Asset Mortgage Loan by the related Mortgagor are less
than 80% of
the lesser of the Purchase Price or the Appraised Value of the
related
Mortgaged Property;
|
(xx)
|
Indiana.
|
There
is
no Mortgage Loan that was originated on or after January 1, 2005, which is a
“high cost home loan” as defined under the Indiana Home Loan Practices Act (I.C.
24-9); and
(yy)
|
Leasehold
Estate.
|
With
respect to each Mortgage Loan secured in whole or in part by the interest
of
the
Mortgagor as a lessee under a ground lease of the related Mortgaged
Property
(a
“Ground Lease”) and not by a fee interest in such Mortgaged
Property:
(i)
|
The
Mortgagor is the owner of a valid and subsisting interest as
tenant under
the Ground Lease;
|
(ii)
|
The
Ground Lease is in full force and
effect;
|
(iii)
|
The
Mortgagor is not in default under any provision of the lease;
|
(iv) |
The
lessor under the Ground Lease is not in default under any of
the terms or
provisions thereof on the part of the lessor to be observed or
performed;
|
(v)
|
The
term of the Ground Lease exceeds the maturity date of the related
Mortgage
Loan by at least five (5) years;
|
(vi)
|
The
Mortgagee under the Mortgage Loan is given at least sixty (60)
days’
notice of any default and an opportunity to cure any defaults
under the
Ground Lease or to take over the Mortgagor’s rights under the Ground
Lease;
|
(vii)
|
The
Ground Lease does not contain any default provisions that could
result in
forfeiture or termination of the Ground Lease except for non-payment
of
the Ground Lease or a court order;
|
(viii) |
The
Ground Lease provides that the leasehold can be transferred,
mortgaged and
sublet an unlimited number of times either without restriction
or on
payment of a reasonable fee and delivery of reasonable documentation
to
the lessor;
|
(ix)
|
The
Ground Lease or a memorandum thereof has been recorded and by
its terms
permits the leasehold estate to be mortgaged;
and
|
(x)
|
The
execution, delivery and performance of the Mortgage do not require
consent
(other than those consents which have been obtained and are in
full force
and effect) under, and will not contravene any provision of or
cause a
default under, the Ground Lease.
|
(zz)
|
Prepayment
Penalty.
|
No
Mortgage Loan contains prepayment penalties that extend beyond five years
after
the date of origination;
(aaa)
|
Qualified
Mortgage Loan.
|
Each
Mortgage Loan would be a “qualified mortgage” within the meaning of Section
860G(a)(3)(A) of the Code and Treasury Regulations Section 1.860G-2(a)(1)
if
transferred to a REMIC on its startup date in exchange for the regular
or
residual interests of the REMIC; and
(bbb)
|
No
Adverse Selection.
|
There
were no adverse selection procedures used in selecting the Mortgage
Loan
from among the residential mortgage loans which were available
for
inclusion in the Mortgage Loans.
|
XIII.
|
With
respect to Mortgage Loans purchased under the Seller’s Purchase,
Warranties and Interim Servicing Agreement, dated as of June
1, 2006 (the
“Mortgage Loan Purchase and Sale Agreement”), between Redwood Mortgage
Funding, Inc. and First Magnus Financial Corporation and an Assignment
dated May __, 2007, between RMF and RWT Holdings, as modified
by the
related Acknowledgements (the “RWT-First Magnus
Agreement”).
|
With
respect to each Mortgage Loan, RWT Holdings hereby makes the following
representations and warranties. Such representations and warranties speak
as of
the Closing Date with respect to the Mortgage Loans (as such capitalized
terms
are defined in the Pooling and Servicing Agreement), unless otherwise indicated.
Capitalized terms are as defined in this Schedule A or in the RWT-First
Magnus
Agreement.
(a) The
information set forth in the related Mortgage Loan Schedule, including
any
diskette or other related data tapes sent to the Purchaser, is complete,
true
and correct in all material respects, and the information
provided to the rating agencies, including the loan level detail, is true
and
correct according to the rating agency requirements;
(b) The
Mortgage creates a first lien or a first priority ownership interest in
an
estate in fee simple in real property securing the related Mortgage
Note;
(c) All
payments due on or prior to the related Closing Date for such Mortgage
Loan have
been made as of the related Closing Date, the Mortgage Loan is not delinquent
in
payment more than 30 days and has not been dishonored; there are no material
defaults under the terms of the Mortgage Loan; the Company has not advanced
funds, or induced, solicited or knowingly received any advance of funds
from a
party other than the owner of the Mortgaged Property subject to the Mortgage,
directly or indirectly, for the payment of any amount required by the Mortgage
Loan; no payment with respect to each Mortgage Loan has been delinquent
during
the preceding twelve-month period;
(d) All
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due
and
owing have been paid, or escrow funds have been established in an amount
sufficient to pay for every such escrowed item which remains unpaid and
which
has been assessed but is not yet due and payable;
(e) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments, which have been
recorded
to the extent any such recordation is required by law. No instrument of
waiver,
alteration or modification has been executed, and no Mortgagor has been
released, in whole or in part, from the terms thereof except in connection
with
an assumption agreement and which assumption agreement is part of the Mortgage
File and the terms of which are reflected in the related Mortgage Loan
Schedule;
the substance of any such waiver, alteration or modification has been approved
by the issuer of any related Primary Mortgage Insurance Policy and title
insurance policy, to the extent required by the related policies;
(f) The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including, without limitation, the defense
of
usury, nor will the operation of any of the terms of the Mortgage Note
or the
Mortgage, or the exercise of any right thereunder, render the Mortgage
Note or
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of
usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto; and the Mortgagor was not a debtor in any
state
or federal bankruptcy or insolvency proceeding at the time the Mortgage
Loan was
originated;
(g) All
buildings or other customarily insured improvements upon the Mortgaged
Property
are insured by an insurer acceptable under the Xxxxxx Mae Guides, against
loss
by fire, hazards of extended coverage and such other hazards as are provided
for
in the Xxxxxx Xxx Guides or by the Xxxxxxx Mac Guides, in an amount representing
coverage not less than the lesser of (i) the maximum insurable value of
the
improvements securing such Mortgage Loans, and (ii) the greater of (a)
the
outstanding principal balance of the Mortgage Loan, and (b) an amount such
that
the proceeds thereof shall be sufficient to prevent the Mortgagor and/or
the
mortgagee from becoming a co-insurer. All such standard hazard policies
are in
full force and effect and on the date of origination contained a standard
mortgagee clause naming the Company and its successors in interest and
assigns
as loss payee and such clause is still in effect and all premiums due thereon
have been paid. If required by the Flood Disaster Protection Act of 1973,
as
amended, the Mortgage Loan is covered by a flood insurance policy meeting
the
requirements of the current guidelines of the Federal Insurance Administration
which policy conforms to Xxxxxx Xxx and Xxxxxxx Mac requirements, in an
amount
not less than the amount required by the Flood Disaster Protection Act
of 1973,
as amended. Such policy was issued by an insurer acceptable under Xxxxxx
Mae or
Xxxxxxx Mac guidelines. The Mortgage obligates the Mortgagor thereunder
to
maintain all such insurance at the Mortgagor’s cost and expense, and upon the
Mortgagor’s failure to do so, authorizes the holder of the Mortgage to maintain
such insurance at the Mortgagor’s cost and expense and to seek reimbursement
therefor from the Mortgagor;
(h) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures,
consumer
credit protection, equal credit opportunity, fair housing, or disclosure
laws
applicable to the Mortgage Loan have been complied with in all material
respects;
(i) The
Mortgage has not been satisfied, canceled or subordinated, in whole or
in part,
or rescinded, and the Mortgaged Property has not been released from the
lien of
the Mortgage, in whole or in part nor has any instrument been executed
that
would effect any such release, cancellation, subordination or rescission.
The
Company has not waived the performance by the Mortgagor of any action,
if the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Company waived any default resulting from any action
or
inaction by the Mortgagor;
(j) The
related Mortgage is a valid, subsisting, enforceable and perfected first
lien on
the Mortgaged Property including all buildings on the Mortgaged Property
and all
installations and mechanical, electrical, plumbing, heating and air conditioning
systems affixed to such buildings, and all additions, alterations and
replacements made at any time with respect to the foregoing securing the
Mortgage Note’s original principal balance. The Mortgage and the Mortgage Note
do not contain any evidence of any security interest or other interest
or right
thereto. Such lien is free and clear of all adverse claims, liens and
encumbrances having priority over the first lien of the Mortgage subject
only to
(1) the lien of non-delinquent current real property taxes and assessments
not
yet due and payable, (2) covenants, conditions and restrictions, rights
of way,
easements and other matters of the public record as of the date of recording
which are acceptable to mortgage lending institutions generally and either
(A)
which are referred to or otherwise considered in the appraisal made for
the
originator of the Mortgage Loan, or (B) which do not adversely affect the
appraised value of the Mortgaged Property as set forth in such appraisal,
and
(3) other matters to which like properties are commonly subject which do
not
materially interfere with the benefits of the security intended to be provided
by the Mortgage or the use, enjoyment, value or marketability of the related
Mortgaged Property. Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
establishes and creates (1) a valid, subsisting, enforceable and perfected
first
lien and first priority security interest and on the property described
therein,
and the Company has the full right to sell and assign the same to the
Purchaser;
(k) The
Mortgage Note and the related Mortgage are original and genuine and each
is the
legal, valid and binding obligation of the maker thereof, enforceable in
all
respects in accordance with its terms subject to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application affecting
the
rights of creditors and by general equitable principles and the Company
has
taken all action necessary to transfer such rights of enforceability to
the
Purchaser. All parties to the Mortgage Note and the Mortgage had the legal
capacity to enter into the Mortgage Loan and to execute and deliver the
Mortgage
Note and the Mortgage. The Mortgage Note and the Mortgage have been duly
and
properly executed by such parties. No fraud, error, omission, misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan has taken
place
on the part of the Company or the Mortgagor, or, on the part of any other
party
involved in the origination of the Mortgage Loan. The proceeds of the Mortgage
Loan have been fully disbursed and there is no requirement for future advances
thereunder, and any and all requirements as to completion of any on-site
or
off-site improvements and as to disbursements of any escrow funds therefor
have
been complied with. All costs, fees and expenses incurred in making or
closing
the Mortgage Loan and the recording of the Mortgage were paid or are in
the
process of being paid, and the Mortgagor is not entitled to any refund
of any
amounts paid or due under the Mortgage Note or Mortgage;
(l) The
Company is the sole owner of record and holder of the Mortgage Loan and
the
indebtedness evidenced by the Mortgage Note, and upon recordation the Purchaser
or its designee will be the owner of record of the Mortgage and the indebtedness
evidenced by the Mortgage Note, and upon the sale of the Mortgage Loan
to the
Purchaser, the Company will retain the Servicing File in trust for the
Purchaser
only for the purpose of interim servicing and supervising the interim servicing
of the Mortgage Loan. Immediately prior to the transfer and assignment
to the
Purchaser on the related Closing Date, the Mortgage Loan, including the
Mortgage
Note and the Mortgage, were not subject to an assignment or pledge, and
the
Company had good and marketable title to and was the sole owner thereof
and had
full right to transfer and sell the Mortgage Loan to the Purchaser free
and
clear of any encumbrance, equity, lien, pledge, charge, claim or security
interest and has the full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign
the
Mortgage Loan pursuant to the RWT-First Magnus Agreement and following
the sale
of the Mortgage Loan, the Purchaser will own such Mortgage Loan free and
clear
of any encumbrance, equity, participation interest, lien, pledge, charge,
claim
or security interest. The Company intends to relinquish all rights to possess,
control and monitor the Mortgage Loan, except for the purposes of servicing
the
Mortgage Loan as set forth in the RWT-First Magnus Agreement. Either the
Mortgagor is a natural person or the Mortgagor is an inter-vivos trust
acceptable to Xxxxxx Mae;
(m) Each
Mortgage Loan is covered by an ALTA lender’s title insurance policy or other
generally acceptable form of policy or insurance acceptable to Xxxxxx Xxx
or
Xxxxxxx Mac, issued by a title insurer acceptable to Xxxxxx Mae or Xxxxxxx
Mac
and qualified to do business in the jurisdiction where the Mortgaged Property
is
located, insuring (subject to the exceptions contained in (j)(1), (2) and
(3)
above) the Company, its successors and assigns, as to the first priority
lien of
the Mortgage in the original principal amount of the Mortgage Loan.
Additionally, such policy affirmatively insures ingress and egress to and
from
the Mortgaged Property. Where required by applicable state law or regulation,
the Mortgagor has been given the opportunity to choose the carrier of the
required mortgage title insurance. The Company, its successors and assigns,
are
the sole insured of such lender’s title insurance policy, such title insurance
policy has been duly and validly endorsed to the Purchaser or the assignment
to
the Purchaser of the Company’s interest therein does not require the consent of
or notification to the insurer and such lender’s title insurance policy is in
full force and effect and will be in full force and effect upon the consummation
of the transactions contemplated by the RWT-First Magnus Agreement and
the
related Purchase Price and Terms Letter. No claims have been made under
such
lender’s title insurance policy, and no prior holder of the related Mortgage,
including the Company, has done, by act or omission, anything which would
impair
the coverage of such lender’s title insurance policy;
(n) 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 permitting acceleration;
and
neither the Company nor any prior mortgagee has waived any default, breach,
violation or event permitting acceleration;
(o) As
of the
related Closing Date, there are no mechanics’ or similar liens or claims which
have been filed for work, labor or material (and no rights outstanding
that
under law could give rise to such liens) affecting the related Mortgaged
Property which are or may be liens prior to or equal to the lien of the
related
Mortgage;
(p) All
improvements subject to the Mortgage which were considered in determining
the
Appraised Value of the Mortgaged Property lie wholly within the boundaries
and
building restriction lines of the Mortgaged Property (and wholly within
the
project with respect to a condominium unit) and no improvements on adjoining
properties encroach upon the Mortgaged Property except those which are
insured
against by the title insurance policy referred to in clause (m) above and
all
improvements on the property comply with all applicable zoning and subdivision
laws and ordinances;
(q) The
Mortgage Loan was originated by or for the Company. The Mortgage Loan complies
with all the terms, conditions and requirements of the Company’s Underwriting
Standards in effect at the time of origination of such Mortgage Loan. The
Mortgage Notes and Mortgages (exclusive of any riders) are on forms generally
acceptable to Xxxxxx Xxx or Xxxxxxx Mac. The Company is currently selling
loans
to Xxxxxx Mae and/or Xxxxxxx Mac which are the same document forms as the
Mortgage Notes and Mortgages (inclusive of any riders). The Mortgage Loan
bears
interest at the Mortgage Interest Rate set forth in the related Mortgage
Loan
Schedule, and Monthly Payments under the Mortgage Note are due and payable
on
the first day of each month. The Mortgage contains the usual and enforceable
provisions of the originator at the time of origination for the acceleration
of
the payment of the unpaid principal amount of the Mortgage Loan if the
related
Mortgaged Property is sold without the prior consent of the mortgagee
thereunder;
(r) As
of the
related Closing Date, the Mortgaged Property is not subject to any material
damage by waste, fire, earthquake, windstorm, flood or other casualty.
At
origination of the Mortgage Loan there was, and there currently is, no
proceeding pending for the total or partial condemnation of the Mortgaged
Property. There have not been any condemnation proceedings with respect
to the
Mortgaged Property and there are no such proceedings scheduled to commence
at a
future date;
(s) The
Mortgage and related Mortgage Note contain customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate
for the
realization against the Mortgaged Property of the benefits of the security
provided thereby, including (i) in the case of a Mortgage designated as
a deed
of trust, by trustee’s sale, and (ii) otherwise by judicial foreclosure.
Following the date of origination of the Mortgage Loan, the Mortgaged Property
has not been subject to any bankruptcy proceeding or foreclosure proceeding
and
the Mortgagor has not filed for protection under applicable bankruptcy
laws.
There is no homestead or other exemption or right available to the Mortgagor
or
any other person which would interfere with the right to sell the Mortgaged
Property at a trustee’s sale or the right to foreclose the
Mortgage;
(t) The
Mortgage Note and Mortgage are on forms acceptable to Xxxxxx Mae or Xxxxxxx
Mac;
(u) If
the
Mortgage constitutes a deed of trust, a trustee, authorized and duly qualified
if required under applicable law to act as such, has been properly designated
and currently so serves and is named in the Mortgage, and no fees or expenses
are or will become payable by the Purchaser to the trustee under the deed
of
trust, except in connection with a trustee’s sale or attempted sale after
default by the Mortgagor;
(v) The
Mortgage File contains an appraisal of the related Mortgaged Property signed
prior to the final approval of the mortgage loan application by a Qualified
Appraiser, who had no interest, direct or indirect, in the Mortgaged Property
or
in any loan made on the security thereof, and whose compensation is not
affected
by the approval or disapproval of the Mortgage Loan, and the appraisal
and
appraiser both satisfy the requirements of Xxxxxx Mae or Xxxxxxx Mac and
Title
XI of FIRREA and the regulations promulgated thereunder, all as in effect
on the
date the Mortgage Loan was originated. The appraisal is in a form acceptable
to
Xxxxxx Mae or Xxxxxxx Mac;
(w) All
parties which have had any interest in the Mortgage, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) (A) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the
Mortgaged
Property is located, and (B) (1) organized under the laws of such state,
or (2)
qualified to do business in such state, or (3) federal savings and loan
associations or national banks or a Federal Home Loan Bank or savings bank
having principal offices in such state, or (4) not doing business in such
state;
(x) As
of the
related Closing Date, the related Mortgage Note is not and has not been
secured
by any collateral except the lien of the corresponding Mortgage and the
security
interest of any applicable security agreement or chattel mortgage referred
to in
(j) above and such collateral does not serve as security for any other
obligation;
(y) The
Mortgagor has received all disclosure materials required by applicable
law with
respect to the making of such mortgage loans;
(z) The
Mortgage Loan does not contain “graduated payment” features and does not have a
shared appreciation or other contingent interest feature; no Mortgage Loan
contains any buydown provisions;
(aa) As
of the
related Closing Date, the Mortgagor is not in bankruptcy and the Mortgagor
is
not insolvent and the Company has no knowledge of any circumstances or
condition
with respect to the Mortgage, the Mortgaged Property, the Mortgagor or
the
Mortgagor’s credit standing that could reasonably be expected to cause investors
to regard the Mortgage Loan as an unacceptable investment, cause the Mortgage
Loan to become delinquent, or materially adversely affect the value or
marketability of the Mortgage Loan;
(bb) The
Mortgage Loans have an original term to maturity of not more than 40 years
with
interest payable in arrears on the first day of each month. Each Mortgage
Note
requires a monthly payment which is sufficient to fully amortize the unpaid
principal balance over the remaining term and to pay interest at the related
Mortgage Interest Rate. Notwithstanding the immediately preceding sentence
with
respect to Mortgage Loans with an initial “interest only” payment period, the
monthly payments due under the related Mortgage Note satisfy only the monthly
interest on the unpaid principal balance of the applicable Mortgage Loan.
After
the initial “interest only” period, each Mortgage Note requires a monthly
payment, which is sufficient to fully amortize the unpaid principal balance
over
the remaining term and to pay interest at the related Mortgage Interest
Rate. In
any case, no Mortgage Loan contains terms or provisions which would result
in
negative amortization.
(cc) If
a
Mortgage Loan has an LTV greater than 80%, the Mortgage Loan will have
mortgage
insurance in accordance with the terms of the Xxxxxx Mae Guides and will
be
insured as to payment defaults by a Primary Mortgage Insurance Policy issued
by
a Qualified Insurer. All provisions of such Primary Mortgage Insurance
Policy
have been and are being complied with, such policy is in full force and
effect,
and all premiums due thereunder have been paid. No action, inaction, or
event
has occurred and no state of facts exists that has, or will result in the
exclusion from, denial of, or defense to coverage. Any Mortgage Loan subject
to
a Primary Mortgage Insurance Policy obligates the Mortgagor thereunder
to
maintain the Primary Mortgage Insurance Policy and to pay all premiums
and
charges in connection therewith. The mortgage interest rate for the Mortgage
Loan as set forth on the related Mortgage Loan Schedule is net of any such
insurance premium. No Mortgage Loan is subject to a lender-paid mortgage
insurance policy;
(dd) As
to any
Mortgage Loan which is not a MERS Mortgage Loan, the Assignment of Mortgage
is
in recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located;
(ee) The
Mortgaged Property is located in the state identified in the related Mortgage
Loan Schedule and consists of a single parcel of real property with a detached
single family residence erected thereon, or a townhouse, or a two-to four-family
dwelling, or an individual condominium unit in a condominium project, or
an
individual unit in a planned unit development or a de minimis planned unit
development, provided, however, that no residence or dwelling is a single
parcel
of real property with a cooperative housing corporation erected thereon,
or a
mobile home. As of the date of origination, no portion of the Mortgaged
Property
was used for commercial purposes, and since the date or origination no
portion
of the Mortgaged Property has been used for commercial purposes;
(ff) Payments
of principal and/or interest on the Mortgage Loan commenced no more than
sixty
(60) days after the funds were disbursed in connection with the Mortgage
Loan.
The Mortgage Note is payable on the first day of each month. After the
initial
“interest only” payment period, if any, the Mortgage Note in payable in equal
monthly installments of principal and interest, with interest calculated
and
payable in arrears, sufficient to amortize the Mortgage Loan fully by the
stated
maturity date, over an original term of not more than thirty years from
commencement of amortization;
(gg) The
Mortgage Loans may be subject to a Prepayment Penalty as identified on
the
Mortgage Loan Schedule, except that no Mortgage Loan contains any
Prepayment Penalty that extends beyond five years after the date of
origination;
(hh) As
of the
related Closing Date, the Mortgaged Property is lawfully occupied under
applicable law, and all inspections, licenses and certificates required
to be
made or issued with respect to all occupied portions of the Mortgaged Property
and, with respect to the use and occupancy of the same, including but not
limited to certificates of occupancy and fire underwriting certificates,
have
been made or obtained from the appropriate authorities;
(ii) If
the
Mortgaged Property is a condominium unit or a planned unit development
(other
than a de minimis planned unit development), or stock in a cooperative
housing
corporation, such condominium, cooperative or planned unit development
project
meets the eligibility requirements of Xxxxxx Xxx and Xxxxxxx Mac;
(jj) There
is
no pending action or proceeding directly involving the Mortgaged Property
in
which compliance with any environmental law, rule or regulation is an issue;
there is no violation of any environmental law, rule or regulation with
respect
to the Mortgaged Property; and nothing further remains to be done to satisfy
in
full all requirements of each such law, rule or regulation constituting
a
prerequisite to use and enjoyment of said property;
(kk) The
Mortgagor has not notified the Company requesting relief under the
Servicemembers’ Civil Relief Act, formerly known as the Soldiers’ and Sailors’
Civil Relief Act of 1940, and the Company has no knowledge of any relief
requested or allowed to the Mortgagor under the Servicemembers’ Civil Relief
Act;
(ll) As
of the
related Closing Date, no Mortgage Loan was in construction or rehabilitation
status or has facilitated the trade-in or exchange of a Mortgaged
Property;
(mm) No
action
has been taken or failed to be taken by the Company on or prior to the
Closing
Date which has resulted or will result in an exclusion from, denial of,
or
defense to coverage under any insurance policy related to a Mortgage Loan
(including, without limitation, any exclusions, denials or defenses which
would
limit or reduce the availability of the timely payment of the full amount
of the
loss otherwise due thereunder to the insured) whether arising out of actions,
representations, errors, omissions, negligence, or fraud of the Company,
or for
any other reason under such coverage;
(nn) The
Mortgage Loan was originated by a mortgagee approved by the Secretary of
Housing
and Urban Development pursuant to sections 203 and 211 of the National
Housing
Act, a savings and loan association, a savings bank, a commercial bank,
credit
union, insurance company or similar institution which is supervised and
examined
by a federal or state authority;
(oo) No
Mortgaged Property is subject to a ground lease;
(pp) With
respect to any broker fees collected and paid on any of the Mortgage Loans,
all
broker fees have been properly assessed to the Mortgagor and no claims
will
arise as to broker fees that are double charged and for which the Mortgagor
would be entitled to reimbursement;
(qq) With
respect to any Mortgage Loan as to which an affidavit has been delivered
to the
Purchaser certifying that the original Mortgage Note has been lost or destroyed
and not been replaced, if such Mortgage Loan is subsequently in default,
the
enforcement of such Mortgage Loan will not be materially adversely affected
by
the absence of the original Mortgage Note;
(rr) Each
Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A)
of
the Code and Treasury Regulations Section 1.860G-2(a)(1);
(ss) Except
as
provided in Section 2.07, the Mortgage Note, the Mortgage, the Assignment
of
Mortgage and the other Mortgage Loan Documents set forth in Exhibit A-1
and
required to be delivered on the related Closing Date have been delivered
to the
Purchaser or its designee all in compliance with the specific requirements
of
the RWT-First Magnus Agreement. With respect to each Mortgage Loan, the
Company
is in possession of a complete Mortgage File and Servicing File except
for such
documents as have been delivered to the Purchaser or its designee;
(tt) All
information supplied by, on behalf of, or concerning the Mortgagor is true,
accurate and complete and does not contain any statement that at the time
provided and as of the Closing Date is or will be inaccurate or misleading
in
any material respect;
(uu) There
does not exist on the related Mortgage Property any hazardous substances,
hazardous wastes or solid wastes, as such terms are defined in the Comprehensive
Environmental Response Compensation and Liability Act, the Resource Conservation
and Recovery Act of 1976, or other federal, state or local environmental
legislation;
(vv) All
disclosure materials required by applicable law with respect to the making
of
fixed rate and adjustable rate mortgage loans have been received by the
borrower;
(ww) No
Mortgage Loan had a Loan-to-Value Ratio at the time of origination of more
than
95%;
(xx) None
of
the Mortgage Loans are subject to the Home Ownership and Equity Protection
Act
of 1994 or any comparable state law;
(yy) None
of
the proceeds of the Mortgage Loan were used to finance single-premium credit
insurance policies;
(zz) Any
principal advances made to the Mortgagor prior to the Closing Date have
been
consolidated with the outstanding principal amount secured by the Mortgage,
and
the secured principal amount, as consolidated, bears a single interest
rate and
single repayment term. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having first lien priority by
a title
insurance policy, an endorsement to the policy insuring the mortgagee’s
consolidated interest or by other title evidence acceptable to Xxxxxx Xxx
and
Xxxxxxx Mac. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(aaa) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
(bbb) No
Mortgage Loan is a Balloon Mortgage Loan;
(ccc) With
respect to each MERS Mortgage Loan, a MIN has been assigned by MERS and
such MIN
is accurately provided on the Mortgage Loan Schedule. The related assignment
of
Mortgage to MERS has been duly and properly recorded;
(ddd) With
respect to each MERS Mortgage Loan, the Company has not received any notice
of
liens or legal actions with respect to such Mortgage Loan and no such notices
have been electronically posted by MERS;
(eee) None
of
the Mortgaged
Properties are manufactured housing;
(fff) With
respect to each Mortgage Loan, the Company has fully and accurately furnished
complete information on the related borrower credit files to Equifax, Experian
and Trans Union Credit Information Company, in accordance with the Fair
Credit
Reporting Act and its implementing regulations;
(ggg) The
Company has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2001
(collectively, the “Anti-Money Laundering Laws”); and the Company has
established an anti-money laundering compliance program as required by
the
Anti-Money Laundering Laws;
(hhh) Each
Mortgage Loan at the time it was made complied in all material respects
with
applicable local, state, and federal laws, including, but not limited to,
all
applicable predatory and abusive lending laws;
(iii) No
Mortgage Loan is a High Cost or Covered Loan, as applicable and no mortgage
loan
is a “high cost” or “covered” mortgage loan, as applicable (as such terms are
defined in the then current Standard and Poor’s LEVELS Glossary which is now
Version 6.0, Appendix E). No Mortgage Loan is in violation of any applicable
federal, state, or local predatory or abusive lending law. Any breach of
this
representation shall be deemed to materially and adversely affect the value
of
the Mortgage Loan and shall require a repurchase of the affected Mortgage
Loan.
(jjj) No
Mortgage Loan was originated on or after October 1, 2002 and prior to March
7,
2003, which is secured by property located in the State of Georgia. No
Mortgage
Loan was originated on or after March 7, 2003 which is a “high cost home loan”
as defined under the Georgia Fair Lending Act. Any breach of this representation
shall be deemed to materially and adversely affect the value of the Mortgage
Loan and shall require a repurchase of the affected Mortgage Loan;
(kkk) No
Mortgage Loan which is secured by property located in the State of New
Jersey is
a “High-Cost Home Loan” as defined in the New Jersey Home Ownership Act, which
became effective November 27, 2003;
(lll) No
Mortgage Loan which is secured by property located in the State of New
Mexico is
a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act,
which became effective January 1, 2004;
(mmm) No
Mortgage Loan which is secured by property located in the State of Kentucky
is a
“High-Cost Home Loan” as defined in the Kentucky House Xxxx 287, which became
effective June 24, 2003;
(nnn)
No
Mortgage Loan which is secured by property located in the Commonwealth
of
Massachusetts is a "High Cost Home Mortgage Loan" as defined in the
Massachusetts Predatory Home Loan Practices Act (Mass. Xxx. Laws ch. 183C)
which
became effective November 7, 2004;
(ooo)
No
Mortgage Loan that is secured by property located in the State of Illinois
is a
"High-Risk Home Loan" as defined in the Illinois High Risk Home Loan Act
effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et seq.); and none
of the
Mortgage Loans that are secured by property located in the State of Illinois
are
in violation of the provisions of the Illinois Interest Act (815 Ill. Comp.
Stat. 205/1 et. seq.);
(ppp) No
Mortgage Loan that is secured by property located in the State of Indiana
is a
"High Cost Home Loan" as defined in Indiana’s Home Loan Practices Act (I.C.
24-9), which became effective January 1, 2005; and
(qqq)
There were no
adverse selection procedures used in selecting the Mortgage Loan from among
the
residential mortgage loans which were available for inclusion in the Mortgage
Loans.
XIV.
|
Seller’s
Purchase, Warranties and Interim Servicing Agreement, dated as
of May 1,
2006 by and between Redwood Mortgage Funding, Inc. (“RMF”) and New Century
Mortgage Corporation (“New Century”), and an Assignment dated [] __, 2007,
between RMF and RWT Holdings (the “New Century-RWT
Agreement”).
|
With
respect to each Mortgage Loan, RWT Holdings hereby makes the following
representations and warranties. Such representations and warranties speak
as of
the Closing Date with respect to the Mortgage Loans (as such capitalized
terms
are defined in the Pooling and Servicing Agreement), unless otherwise indicated.
Capitalized terms are as defined in this Schedule A or in the New Century-RWT
Agreement.
(a) The
information set forth in the related Mortgage Loan Schedule, including
any
diskette or other related data tapes sent to the Purchaser, is complete,
true
and correct in all material respects the
information provided to the rating agencies, including the loan level detail,
is
true and correct according to the rating agency requirements;
(b) The
Mortgage creates a first lien or a first priority ownership interest in
an
estate in fee simple in real property securing the related Mortgage
Note;
(c) All
payments due on or prior to the related Closing Date for such Mortgage
Loan have
been made as of the related Closing Date, the Mortgage Loan is not delinquent
in
payment more than 30 days and has not been dishonored; there are no material
defaults under the terms of the Mortgage Loan; the Company has not advanced
funds, or induced, solicited or knowingly received any advance of funds
from a
party other than the owner of the Mortgaged Property subject to the Mortgage,
directly or indirectly, for the payment of any amount required by the Mortgage
Loan; no payment with respect to each Mortgage Loan has been delinquent
during
the preceding twelve-month period;
(d) All
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due
and
owing have been paid, or escrow funds have been established in an amount
sufficient to pay for every such escrowed item which remains unpaid and
which
has been assessed but is not yet due and payable;
(e) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments, which have been
recorded
to the extent any such recordation is required by law. No instrument of
waiver,
alteration or modification has been executed, and no Mortgagor has been
released, in whole or in part, from the terms thereof except in connection
with
an assumption agreement and which assumption agreement is part of the Mortgage
File and the terms of which are reflected in the related Mortgage Loan
Schedule;
the substance of any such waiver, alteration or modification has been approved
by the issuer of any related Primary Mortgage Insurance Policy and title
insurance policy, to the extent required by the related policies;
(f) The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including, without limitation, the defense
of
usury, nor will the operation of any of the terms of the Mortgage Note
or the
Mortgage, or the exercise of any right thereunder, render the Mortgage
Note or
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of
usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto; and the Mortgagor was not a debtor in any
state
or federal bankruptcy or insolvency proceeding at the time the Mortgage
Loan was
originated;
(g) All
buildings or other customarily insured improvements upon the Mortgaged
Property
are insured by a Qualified Insurer against loss by fire, hazards of extended
coverage and such other hazards in an amount representing coverage not
less than
the lesser of (i) the maximum insurable value of the improvements securing
such
Mortgage Loans, and (ii) the greater of (a) the outstanding principal balance
of
the Mortgage Loan, and (b) an amount such that the proceeds thereof shall
be
sufficient to prevent the Mortgagor and/or the mortgagee from becoming
a
co-insurer. All such standard hazard policies are in full force and effect
and
on the date of origination contained a standard mortgagee clause naming
the
Company and its successors in interest and assigns as loss payee and such
clause
is still in effect and all premiums due thereon have been paid. If required
by
the Flood Disaster Protection Act of 1973, as amended, the Mortgage Loan
is
covered by a flood insurance policy meeting the requirements of the current
guidelines of the Federal Insurance Administration in an amount not less
than
the amount required by the Flood Disaster Protection Act of 1973, as amended.
Such policy was issued by a Qualified Insurer. The Mortgage obligates the
Mortgagor there under to maintain all such insurance at the Mortgagor’s cost and
expense, and upon the Mortgagor’s failure to do so, authorizes the holder of the
Mortgage to maintain such insurance at the Mortgagor’s cost and expense and to
seek reimbursement therefore from the Mortgagor;
(h) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures,
consumer
credit protection, equal credit opportunity, fair housing, or disclosure
laws
applicable to the Mortgage Loan have been complied with in all material
respects;
(i) The
Mortgage has not been satisfied, canceled or subordinated, in whole or
in part,
or rescinded, and the Mortgaged Property has not been released from the
lien of
the Mortgage, in whole or in part nor has any instrument been executed
that
would effect any such release, cancellation, subordination or rescission.
The
Company has not waived the performance by the Mortgagor of any action,
if the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Company waived any default resulting from any action
or
inaction by the Mortgagor;
(j) The
related Mortgage is a valid, subsisting, enforceable and perfected first
lien on
the Mortgaged Property including all buildings on the Mortgaged Property
and all
installations and mechanical, electrical, plumbing, heating and air conditioning
systems affixed to such buildings, and all additions, alterations and
replacements made at any time with respect to the foregoing securing the
Mortgage Note’s original principal balance. The Mortgage and the Mortgage Note
do not contain any evidence of any security interest or other interest
or right
thereto. Such lien is free and clear of all adverse claims, liens and
encumbrances having priority over the first lien of the Mortgage subject
only to
(1) the lien of non-delinquent current real property taxes and assessments
not
yet due and payable, (2) covenants, conditions and restrictions, rights
of way,
easements and other matters of the public record as of the date of recording
which are acceptable to mortgage lending institutions generally and either
(A)
which are referred to or otherwise considered in the appraisal made for
the
originator of the Mortgage Loan, or (B) which do not adversely affect the
appraised value of the Mortgaged Property as set forth in such appraisal,
and
(3) other matters to which like properties are commonly subject which do
not
materially interfere with the benefits of the security intended to be provided
by the Mortgage or the use, enjoyment, value or marketability of the related
Mortgaged Property. Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
establishes and creates (1) a valid, subsisting, enforceable and perfected
first
lien and first priority security interest and on the property described
therein,
and the Company has the full right to sell and assign the same to the
Purchaser;
(k) The
Mortgage Note and the related Mortgage are original and genuine and each
is the
legal, valid and binding obligation of the maker thereof, enforceable in
all
respects in accordance with its terms subject to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application affecting
the
rights of creditors and by general equitable principles and the Company
has
taken all action necessary to transfer such rights of enforceability to
the
Purchaser. All parties to the Mortgage Note and the Mortgage had the legal
capacity to enter into the Mortgage Loan and to execute and deliver the
Mortgage
Note and the Mortgage. The Mortgage Note and the Mortgage have been duly
and
properly executed by such parties. No fraud, error, omission, misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan has taken
place
on the part of the Company or the Mortgagor, or, on the part of any other
party
involved in the origination of the Mortgage Loan. The proceeds of the Mortgage
Loan have been fully disbursed and there is no requirement for future advances
thereunder (excepting therefrom HELOCs), and any and all requirements as
to
completion of any on-site or off-site improvements and as to disbursements
of
any escrow funds therefore have been complied with. All costs, fees and
expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage were paid or are in the process of being paid, and the Mortgagor
is not
entitled to any refund of any amounts paid or due under the Mortgage Note
or
Mortgage;
(l) The
Company is the sole owner of record and holder of the Mortgage Loan and
the
indebtedness evidenced by the Mortgage Note, and upon recordation the Purchaser
or its designee will be the owner of record of the Mortgage and the indebtedness
evidenced by the Mortgage Note, and upon the sale of the Mortgage Loan
to the
Purchaser, the Company will retain the Servicing File in trust for the
Purchaser
only for the purpose of interim servicing and supervising the interim servicing
of the Mortgage Loan. Immediately prior to the transfer and assignment
to the
Purchaser on the related Closing Date, the Mortgage Loan, including the
Mortgage
Note and the Mortgage, were not subject to an assignment or pledge, and
the
Company had good and marketable title to and was the sole owner thereof
and had
full right to transfer and sell the Mortgage Loan to the Purchaser free
and
clear of any encumbrance, equity, lien, pledge, charge, claim or security
interest and has the full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign
the
Mortgage Loan pursuant to the New Century-RWT Agreement and following the
sale
of the Mortgage Loan, the Purchaser will own such Mortgage Loan free and
clear
of any encumbrance, equity, participation interest, lien, pledge, charge,
claim
or security interest. The Company intends to relinquish all rights to possess,
control and monitor the Mortgage Loan, except for the purposes of servicing
the
Mortgage Loan as set forth in the New Century-RWT Agreement. Either the
Mortgagor is a natural person or the Mortgagor is an inter-vivos trust
acceptable to Xxxxxx Xxx;
(m)
Each
Mortgage Loan is covered by an ALTA lender’s title insurance policy or other
generally acceptable form of policy or insurance acceptable to Xxxxxx Xxx
or
Xxxxxxx Mac, issued by a Qualified Insurer qualified to do business in
the
jurisdiction where the Mortgaged Property is located, insuring (subject
to the
exceptions contained in (j)(1), (2) and (3) above) the Company, its successors
and assigns, as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan. Additionally, such policy affirmatively
insures ingress and egress to and from the Mortgaged Property. Where required
by
applicable state law or regulation, the Mortgagor has been given the opportunity
to choose the carrier of the required mortgage title insurance. The Company,
its
successors and assigns, are the sole insured of such lender’s title insurance
policy, such title insurance policy has been duly and validly endorsed
to the
Purchaser or the assignment to the Purchaser of the Company’s interest therein
does not require the consent of or notification to the insurer and such
lender’s
title insurance policy is in full force and effect and will be in full
force and
effect upon the consummation of the transactions contemplated by the New
Century-RWT Agreement and the related Purchase Price and Terms Letter.
No claims
have been made under such lender’s title insurance policy, and no prior holder
of the related Mortgage, including the Company, has done, by act or omission,
anything which would impair the coverage of such lender’s title insurance
policy;
(n) 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 permitting acceleration;
and
neither the Company nor any prior mortgagee has waived any default, breach,
violation or event permitting acceleration;
(o) As
of the
related Closing Date, there are no mechanics’ or similar liens or claims which
have been filed for work, labor or material (and the Company has no notice
of
any rights outstanding that under law could give rise to such liens) affecting
the related Mortgaged Property which are or may be liens prior to or equal
to
the lien of the related Mortgage;
(p) All
improvements subject to the Mortgage which were considered in determining
the
Appraised Value of the Mortgaged Property lie wholly within the boundaries
and
building restriction lines of the Mortgaged Property (and wholly within
the
project with respect to a condominium unit) and no improvements on adjoining
properties encroach upon the Mortgaged Property except those which are
insured
against by the title insurance policy referred to in clause (m) above and
all
improvements on the property comply with all applicable zoning and subdivision
laws and ordinances;
(q) The
Mortgage Loan was originated by or for the Originator. The Mortgage Loan
complies with all the terms, conditions and requirements of the Underwriting
Standards in effect at the time of origination of such Mortgage Loan. The
Mortgage Notes and Mortgages (exclusive of any riders) are on forms generally
acceptable to Xxxxxx Xxx or Xxxxxxx Mac. The Company is currently selling
loans
to Xxxxxx Mae and/or Xxxxxxx Mac which are the same document forms as the
Mortgage Notes and Mortgages (inclusive of any riders). The Mortgage Loan
bears
interest at the Mortgage Interest Rate set forth in the related Mortgage
Loan
Schedule, and Monthly Payments under the Mortgage Note are due and payable
on
the first day of each month. The Mortgage contains the usual and enforceable
provisions of the originator at the time of origination for the acceleration
of
the payment of the unpaid principal amount of the Mortgage Loan if the
related
Mortgaged Property is sold without the prior consent of the mortgagee
thereunder;
(r) As
of the
related Closing Date, the Mortgaged Property is not subject to any material
damage by waste, fire, earthquake, windstorm, flood or other casualty.
At
origination of the Mortgage Loan there was, and there currently is, no
proceeding pending for the total or partial condemnation of the Mortgaged
Property. The Company has no notice of any such condemnation proceedings
scheduled to commence at a future date;
(s) The
Mortgage and related Mortgage Note contain customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate
for the
realization against the Mortgaged Property of the benefits of the security
provided thereby, including (i) in the case of a Mortgage designated as
a deed
of trust, by trustee’s sale, and (ii) otherwise by judicial foreclosure. To the
best of the Company’s knowledge, following the date of origination of the
Mortgage Loan, the Mortgaged Property has not been subject to any bankruptcy
proceeding or foreclosure proceeding and the Mortgagor has not filed for
protection under applicable bankruptcy laws. There is no homestead or other
exemption or right available to the Mortgagor or any other person which
would
interfere with the right to sell the Mortgaged Property at a trustee’s sale or
the right to foreclose the Mortgage;
(t) The
Mortgage Note and Mortgage are on forms acceptable to Xxxxxx Mae or Xxxxxxx
Mac;
(u) If
the
Mortgage constitutes a deed of trust, a trustee, authorized and duly qualified
if required under applicable law to act as such, has been properly designated
and currently so serves and is named in the Mortgage, and no fees or expenses
are or will become payable by the Purchaser to the trustee under the deed
of
trust, except in connection with a trustee’s sale or attempted sale after
default by the Mortgagor;
(v) The
Mortgage File contains an appraisal of the related Mortgaged Property signed
prior to the final approval of the mortgage loan application by a Qualified
Appraiser, who had no interest, direct or indirect, in the Mortgaged Property
or
in any loan made on the security thereof, and whose compensation is not
affected
by the approval or disapproval of the Mortgage Loan, and the appraisal
and
appraiser both satisfy the requirements of Xxxxxx Mae or Xxxxxxx Mac and
Title
XI of FIRREA and the regulations promulgated thereunder, all as in effect
on the
date the Mortgage Loan was originated. The appraisal is in a form acceptable
to
Xxxxxx Mae or Xxxxxxx Mac;
(w) All
parties which have had any interest in the Mortgage, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) (A) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the
Mortgaged
Property is located, and (B) (1) organized under the laws of such state,
or (2)
qualified to do business in such state, or (3) federal savings and loan
associations or national banks or a Federal Home Loan Bank or savings bank
having principal offices in such state, or (4) not doing business in such
state;
(x)
As of
the related Closing Date, the related Mortgage Note is not and has not
been
secured by any collateral except the lien of the corresponding Mortgage
and the
security interest of any applicable security agreement or chattel mortgage
referred to in (j) above and such collateral does not serve as security
for any
other obligation;
(y) The
Mortgagor has received all disclosure materials required by applicable
law with
respect to the making of such mortgage loans;
(z) The
Mortgage Loan does not contain “graduated payment” features and does not have a
shared appreciation or other contingent interest feature; no Mortgage Loan
contains any buydown provisions;
(aa) As
of the
related Closing Date, the Mortgagor is not in bankruptcy and the Mortgagor
is
not insolvent and the Company has no knowledge of any circumstances or
condition
with respect to the Mortgage, the Mortgaged Property, the Mortgagor or
the
Mortgagor’s credit standing that could reasonably be expected to cause investors
to regard the Mortgage Loan as an unacceptable investment, cause the Mortgage
Loan to become delinquent, or materially adversely affect the value or
marketability of the Mortgage Loan;
(bb) Each
Mortgage Loans has an original term to maturity of not more than 40 years
with
interest payable in arrears on the first day of each month. Each Mortgage
Note
requires a monthly payment, which is sufficient to fully amortize the unpaid
principal balance over the remaining term and to pay interest at the related
Mortgage Interest Rate. Notwithstanding the immediately preceding sentence
with
respect to Mortgage Loans with an initial “interest only” payment period, the
monthly payments due under the related Mortgage Note satisfy only the monthly
interest on the unpaid principal balance of the applicable Mortgage Loan.
After
the initial “interest only” period, each Mortgage Note requires a monthly
payment, which is sufficient to fully amortize the unpaid principal balance
over
the remaining term and to pay interest at the related Mortgage Interest
Rate. In
any case, no Mortgage Loan contains terms or provisions which would result
in
negative amortization;
(cc) If
a
Mortgage Loan has an LTV greater than 80%, the Mortgage Loan will be insured
as
to payment defaults by a Primary Mortgage Insurance Policy issued by a
Qualified
Insurer. All provisions of such Primary Mortgage Insurance Policy have
been and
are being complied with, such policy is in full force and effect, and all
premiums due thereunder have been paid. No action, inaction, or event has
occurred and no state of facts exists that has, or will result in the exclusion
from, denial of, or defense to coverage. Any Mortgage Loan subject to a
Primary
Mortgage Insurance Policy obligates the Mortgagor thereunder to maintain
the
Primary Mortgage Insurance Policy and to pay all premiums and charges in
connection therewith. The mortgage interest rate for the Mortgage Loan
as set
forth on the related Mortgage Loan Schedule is net of any such insurance
premium;
(dd) As
to any
Mortgage Loan which is not a MERS Mortgage Loan, the Assignment of Mortgage
is
in recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located;
(ee) The
Mortgaged Property is located in the state identified in the related Mortgage
Loan Schedule and consists of a single parcel of real property with a detached
single family residence erected thereon, or a townhouse, or a two-to four-family
dwelling, or an individual condominium unit in a condominium project, or
an
individual unit in a planned unit development or a de minimis planned unit
development, provided, however, that no residence or dwelling is a single
parcel
of real property with a cooperative housing corporation erected thereon
or a
mobile home. As of the date of origination, no portion of the Mortgaged
Property
was used for commercial purposes, and since the date or origination no
portion
of the Mortgaged Property has been used for commercial purposes;
(ff) Payments
of principal and/or interest on the Mortgage Loan commenced no more than
sixty
(60) days after the funds were disbursed in connection with the Mortgage
Loan.
The Mortgage Note is payable on the first day of each month. After the
initial
“interest only” payment period, if any, the Mortgage Note in payable in equal
monthly installments of principal and interest, with interest calculated
and
payable in arrears, sufficient to amortize the Mortgage Loan fully by the
stated
maturity date, over an original term of not more than thirty years from
commencement of amortization;
(gg) A
Mortgage Loan may be subject to a Prepayment Penalty as identified on the
Mortgage Loan Schedule, except that no Mortgage Loan contains any
Prepayment Penalty that extends beyond five years after the date of
origination;
(hh) As
of the
related Closing Date, the Mortgaged Property is lawfully occupied under
applicable law, and all inspections, licenses and certificates required
to be
made or issued with respect to all occupied portions of the Mortgaged Property
and, with respect to the use and occupancy of the same, including but not
limited to certificates of occupancy and fire underwriting certificates,
have
been made or obtained from the appropriate authorities;
(ii) If
the
Mortgaged Property is a condominium unit or a planned unit development
(other
than a de minimis planned unit development), or stock in a cooperative
housing
corporation, such condominium, cooperative or planned unit development
project
meets the eligibility requirements of Xxxxxx Mae and Xxxxxxx Mac;
(jj)
There is
no pending action or proceeding directly involving the Mortgaged Property
in
which compliance with any environmental law, rule or regulation is an issue;
there is no violation of any environmental law, rule or regulation with
respect
to the Mortgaged Property; and nothing further remains to be done to satisfy
in
full all requirements of each such law, rule or regulation constituting
a
prerequisite to use and enjoyment of said property;
(kk) The
Mortgagor has not notified the Company requesting relief under the
Servicemembers’ Civil Relief Act, formerly known as the Soldiers’ and Sailors’
Civil Relief Act of 1940, and the Company has no knowledge of any relief
requested or allowed to the Mortgagor under the Servicemembers’ Civil Relief
Act;
(ll) As
of the
related Closing Date, no Mortgage Loan was in construction or rehabilitation
status or has facilitated the trade-in or exchange of a Mortgaged
Property;
(mm) No
action
has been taken or failed to be taken by the Company on or prior to the
Closing
Date which has resulted or will result in an exclusion from, denial of,
or
defense to coverage under any insurance policy related to a Mortgage Loan
(including, without limitation, any exclusions, denials or defenses which
would
limit or reduce the availability of the timely payment of the full amount
of the
loss otherwise due thereunder to the insured) whether arising out of actions,
representations, errors, omissions, negligence, or fraud of the Company,
or for
any other reason under such coverage;
(nn) The
Mortgage Loan was originated by a mortgagee approved by the Secretary of
Housing
and Urban Development pursuant to sections 203 and 211 of the National
Housing
Act, a savings and loan association, a savings bank, a commercial bank,
credit
union, insurance company or similar institution which is supervised and
examined
by a federal or state authority;
(oo) Each
Mortgage Loan that is secured by a leasheld interest conforms to the Xxxxxx
Xxx
requirements for mortgage loans secured by leasehold estates;
(pp) With
respect to any broker fees collected and paid on any of the Mortgage Loans,
all
broker fees have been properly assessed to the Mortgagor and no claims
will
arise as to broker fees that are double charged and for which the Mortgagor
would be entitled to reimbursement;
(qq) With
respect to any Mortgage Loan as to which an affidavit has been delivered
to the
Purchaser certifying that the original Mortgage Note has been lost or destroyed
and not been replaced, if such Mortgage Loan is subsequently in default,
the
enforcement of such Mortgage Loan will not be materially adversely affected
by
the absence of the original Mortgage Note;
(rr) Each
Mortgage Loan would be a “qualified mortgage” within the meaning of Section
860G(a)(3) of the Code if transferred to a REMIC on its startup date in
exchange
for the regular or residual interests of the REMIC;
(ss) Except
as
provided in Section 2.07, the Mortgage Note, the Mortgage, the Assignment
of
Mortgage and the other Mortgage Loan Documents set forth in Exhibit A-1
and
required to be delivered on the related Closing Date have been delivered
to the
Purchaser or its designee all in compliance with the specific requirements
of
the New Century-RWT Agreement. With respect to each Mortgage Loan, the
Company
is in possession of a complete Mortgage File and Servicing File except
for such
documents as have been delivered to the Purchaser or its designee;
(tt)
All
information supplied by, on behalf of, or concerning the Mortgagor is true,
accurate and complete and does not contain any statement that at the time
provided and as of the Closing Date is inaccurate or misleading in any
material
respect;
(uu)
There
does not exist on the related Mortgage Property any hazardous substances,
hazardous wastes or solid wastes, as such terms are defined in the Comprehensive
Environmental Response Compensation and Liability Act, the Resource Conservation
and Recovery Act of 1976, or other federal, state or local environmental
legislation, that imposes an obligation upon the mortgagee to remediate
such
hazardous substances; provided, that commonly used household items shall
not
constitute “hazardous substances” for purposes of this subsection;
(vv) All
disclosure materials required by applicable law with respect to the making
of
fixed rate and adjustable rate mortgage loans have been received by the
borrower;
(ww) No
Mortgage Loan had a Loan-to-Value Ratio at the time of origination of more
than
95%;
(xx) None
of
the Mortgage Loans are subject to the Home Ownership and Equity Protection
Act
of 1994 or any comparable state law;
(yy) None
of
the proceeds of the Mortgage Loan were used to finance single-premium credit
insurance policies;
(zz) Any
principal advances made to the Mortgagor prior to the Closing Date have
been
consolidated with the outstanding principal amount secured by the Mortgage,
and
the secured principal amount, as consolidated, bears a single interest
rate and
single repayment term. With respect to a first lien Mortgage Loan, the
lien of
the Mortgage securing the consolidated principal amount is expressly insured
as
having first lien priority by a title insurance policy, an endorsement
to the
policy insuring the mortgagee’s consolidated interest or by other title evidence
acceptable to Xxxxxx Mae and Xxxxxxx Mac. The consolidated principal amount
does
not exceed the original principal amount of the Mortgage Loan;
(aaa) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
(bbb) No
Mortgage Loan is a Balloon Mortgage Loan;
(ccc) With
respect to each MERS Mortgage Loan, a MIN has been assigned by MERS and
such MIN
is accurately provided on the Mortgage Loan Schedule. The related assignment
of
Mortgage to MERS has been duly and properly recorded;
(ddd) With
respect to each MERS Mortgage Loan, the Company has not received any notice
of
liens or legal actions with respect to such Mortgage Loan and no such notices
have been electronically posted by MERS;
(eee) None
of
the Mortgaged
Properties are manufactured housing;
(fff) With
respect to each Mortgage Loan, the Company has fully and accurately furnished
complete information on the related borrower credit files to Equifax, Experian
and Trans Union Credit Information Company, in accordance with the Fair
Credit
Reporting Act and its implementing regulations;
(ggg) The
Originator has complied with all applicable anti-money laundering laws
and
regulations, including without limitation the USA Patriot Act of 2001
(collectively, the “Anti-Money Laundering Laws”); the Originator has established
an anti-money laundering compliance program as required by the Anti-Money
Laundering Laws, has conducted the requisite due diligence in connection
with
the origination of each Mortgage Loan for purposes of the Anti-Money Laundering
Laws, including with respect to the legitimacy of the applicable Mortgagor
and
the origin of the assets used by the said Mortgagor to purchase the property
in
question, and maintains, and will maintain, sufficient information to identify
the applicable Mortgagor for purposes of the Anti-Money Laundering
Laws;
(hhh) Each
Mortgage Loan at the time it was made complied in all material respects
with
applicable local, state, and federal laws, including, but not limited to,
all
applicable predatory and abusive lending laws;
(iii) No
Mortgage Loan is “high cost” as defined by any applicable federal, state, or
local predatory or abusive lending law and no Mortgage Loan is a High Cost
Loan
or Covered Loan, as applicable as such terms are defined in the current
Standard
& Poor’s LEVELS ® Glossary Revised, Appendix E. Any breach of this
representation shall be deemed to materially and adversely affect the value
of
the Mortgage Loan and shall require a repurchase of the affected Mortgage
Loan;
(jjj) No
Mortgage Loan was originated on or after October 1, 2002 and prior to March
7,
2003, which is secured by property located in the State of Georgia. No
Mortgage
Loan was originated on or after March 7, 2003 that is a “high cost home loan” as
defined under the Georgia Fair Lending Act. Any breach of this representation
shall be deemed to materially and adversely affect the value of the Mortgage
Loan and shall require a repurchase of the affected Mortgage Loan;
(kkk) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Jersey Home
Ownership Act, which became effective November 27, 2003; and
(lll) There
were no
adverse selection procedures used in selecting the Mortgage Loan from among
the
residential mortgage loans which were available for inclusion in the Mortgage
Loans.
XV.
|
Seller’s
Purchase, Warranties and Interim Servicing Agreement, dated as
of July 1,
2006, between Redwood Mortgage Funding, Inc. (“RMF”) and Guaranteed Rate,
Inc. (“Guaranteed Rate”) and an Assignment dated [January 15, 2007],
between RMF and RWT Holdings, as modified by the related Acknowledgements
(the “RWT-Guaranteed Rate
Agreement”).
|
With
respect to each Mortgage Loan, RWT Holdings hereby makes the following
representations and warranties. Such representations and warranties speak
as of
the Closing Date with respect to the Mortgage Loans (as such capitalized
terms
are defined in the Pooling and Servicing Agreement), unless otherwise indicated.
Capitalized terms are as defined in this Schedule A or in the RWT-Guaranteed
Rate Agreement.
(a)
The
information set forth in the related Mortgage Loan Schedule, including
any
diskette or other related data tapes sent to the Purchaser, is complete,
true
and correct in all material respects and
the
information provided to the rating agencies, including the loan level detail,
is
true and correct according to the rating agency requirements;
(b)
The
Mortgage creates a first lien or a first priority ownership interest in
an
estate in fee simple in real property securing the related Mortgage
Note;
(c)
All
payments due on or prior to the related Closing Date for such Mortgage
Loan have
been made as of the related Closing Date, the Mortgage Loan is not delinquent
in
payment more than 30 days and has not been dishonored; there are no material
defaults under the terms of the Mortgage Loan; RWT Holdings has not advanced
funds, or induced, solicited or knowingly received any advance of funds
from a
party other than the owner of the Mortgaged Property subject to the Mortgage,
directly or indirectly, for the payment of any amount required by the Mortgage
Loan; no payment with respect to each Mortgage Loan has been delinquent
during
the preceding twelve-month period;
(d)
All
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due
and
owing have been paid, or escrow funds have been established in an amount
sufficient to pay for every such escrowed item which remains unpaid and
which
has been assessed but is not yet due and payable;
(e)
The
terms of the Mortgage Note and the Mortgage have not been impaired, waived,
altered or modified in any respect, except by written instruments, which
have
been recorded to the extent any such recordation is required by law. No
instrument of waiver, alteration or modification has been executed, and
no
Mortgagor has been released, in whole or in part, from the terms thereof
except
in connection with an assumption agreement and which assumption agreement
is
part of the Mortgage File and the terms of which are reflected in the related
Mortgage Loan Schedule; the substance of any such waiver, alteration or
modification has been approved by the issuer of any related Primary Mortgage
Insurance Policy and title insurance policy, to the extent required by
the
related policies;
(f)
The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including, without limitation, the defense
of
usury, nor will the operation of any of the terms of the Mortgage Note
or the
Mortgage, or the exercise of any right thereunder, render the Mortgage
Note or
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of
usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto; and the Mortgagor was not a debtor in any
state
or federal bankruptcy or insolvency proceeding at the time the Mortgage
Loan was
originated;
(g)
All
buildings or other customarily insured improvements upon the Mortgaged
Property
are insured by an insurer acceptable under the Xxxxxx Mae Guides, against
loss
by fire, hazards of extended coverage and such other hazards as are provided
for
in the Xxxxxx Xxx Guides or by the Xxxxxxx Mac Guides, in an amount representing
coverage not less than the lesser of (i) the maximum insurable value of
the
improvements securing such Mortgage Loans, and (ii) the greater of (a)
the
outstanding principal balance of the Mortgage Loan, and (b) an amount such
that
the proceeds thereof shall be sufficient to prevent the Mortgagor and/or
the
mortgagee from becoming a co-insurer. All such standard hazard policies
are in
full force and effect and on the date of origination contained a standard
mortgagee clause naming the Company and its successors in interest and
assigns
as loss payee and such clause is still in effect and all premiums due thereon
have been paid. If required by the Flood Disaster Protection Act of 1973,
as
amended, the Mortgage Loan is covered by a flood insurance policy meeting
the
requirements of the current guidelines of the Federal Insurance Administration
which policy conforms to Xxxxxx Xxx and Xxxxxxx Mac requirements, in an
amount
not less than the amount required by the Flood Disaster Protection Act
of 1973,
as amended. Such policy was issued by an insurer acceptable under Xxxxxx
Mae or
Xxxxxxx Mac guidelines. The Mortgage obligates the Mortgagor thereunder
to
maintain all such insurance at the Mortgagor’s cost and expense, and upon the
Mortgagor’s failure to do so, authorizes the holder of the Mortgage to maintain
such insurance at the Mortgagor’s cost and expense and to seek reimbursement
therefor from the Mortgagor;
(h)
Any
and all requirements of any federal, state or local law including, without
limitation,
usury, truth-in-lending, real estate settlement procedures, consumer credit
protection, equal
credit opportunity, fair housing, or disclosure laws applicable to the
Mortgage
Loan have been
complied with in all material respects;
(i)
The
Mortgage has not been satisfied, canceled or subordinated, in whole or
in part,
or rescinded, and the Mortgaged Property has not been released from the
lien of
the Mortgage, in whole or in part nor has any instrument been executed
that
would effect any such release, cancellation, subordination or rescission.
RWT
Holdings has not waived the performance by the Mortgagor of any action,
if the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has RWT Holdings waived any default resulting from any
action or
inaction by the Mortgagor;
(j)
The
related Mortgage is a valid, subsisting, enforceable and perfected first
lien on
the Mortgaged Property including all buildings on the Mortgaged Property
and all
installations and mechanical, electrical, plumbing, heating and air conditioning
systems affixed to such buildings, and all additions, alterations and
replacements made at any time with respect to the foregoing securing the
Mortgage Note’s original principal balance. The Mortgage and the Mortgage Note
do not contain any evidence of any security interest or other interest
or right
thereto. Such lien is free and clear of all adverse claims, liens and
encumbrances having priority over the first lien of the Mortgage subject
only to
(1) the lien of non-delinquent current real property taxes and assessments
not
yet due and payable, (2) covenants, conditions and restrictions, rights
of way,
easements and other matters of the public record as of the date of recording
which are acceptable to mortgage lending institutions generally and either
(A)
which are referred to or otherwise considered in the appraisal made for
the
originator of the Mortgage Loan, or (B) which do not adversely affect the
appraised value of the Mortgaged Property as set forth in such appraisal,
and
(3) other matters to which like properties are commonly subject which do
not
materially interfere with the benefits of the security intended to be provided
by the Mortgage or the use, enjoyment, value or marketability of the related
Mortgaged Property. Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
establishes and creates (1) a valid, subsisting, enforceable and perfected
first
lien and first priority security interest and on the property described
therein,
and RWT Holdings has the full right to sell and assign the same to the
Purchaser;
(k)
The
Mortgage Note and the related Mortgage are original and genuine and each
is the
legal, valid and binding obligation of the maker thereof, enforceable in
all
respects in accordance with its terms subject to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application affecting
the
rights of creditors and by general equitable principles and RWT Holdings
has
taken all action necessary to transfer such rights of enforceability to
the
Purchaser. All parties to the Mortgage Note and the Mortgage had the legal
capacity to enter into the Mortgage Loan and to execute and deliver the
Mortgage
Note and the Mortgage. The Mortgage Note and the Mortgage have been duly
and
properly executed by such parties. No fraud, error, omission, misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan has taken
place
on the part of RWT Holdings or the Mortgagor, or, on the part of any other
party
involved in the origination of the Mortgage Loan. The proceeds of the Mortgage
Loan have been fully disbursed and there is no requirement for future advances
thereunder, and any and all requirements as to completion of any on-site
or
off-site improvements and as to disbursements of any escrow funds therefor
have
been complied with. All costs, fees and expenses incurred in making or
closing
the Mortgage Loan and the recording of the Mortgage were paid or are in
the
process of being paid, and the Mortgagor is not entitled to any refund
of any
amounts paid or due under the Mortgage Note or Mortgage;
(l)
RWT
Holdings is the sole owner of record and holder of the Mortgage Loan and
the
indebtedness evidenced by the Mortgage Note, and upon recordation the Purchaser
or its designee will be the owner of record of the Mortgage and the indebtedness
evidenced by the Mortgage Note, and upon the sale of the Mortgage Loan
to the
Purchaser, the Company will retain the Servicing File in trust for the
Purchaser
only for the purpose of interim servicing and supervising the interim servicing
of the Mortgage Loan. Immediately prior to the transfer and assignment
to the
Purchaser on the related Closing Date, the Mortgage Loan, including the
Mortgage
Note and the Mortgage, were not subject to an assignment or pledge, and
RWT
Holdings had good and marketable title to and was the sole owner thereof
and had
full right to transfer and sell the Mortgage Loan to the Purchaser free
and
clear of any encumbrance, equity, lien, pledge, charge, claim or security
interest and has the full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign
the
Mortgage Loan pursuant to the RWT-Guaranteed Rate Agreement and following
the
sale of the Mortgage Loan, the Purchaser will own such Mortgage Loan free
and
clear of any encumbrance, equity, participation interest, lien, pledge,
charge,
claim or security interest. The Company intends to relinquish all rights
to
possess, control and monitor the Mortgage Loan, except for the purposes
of
servicing the Mortgage Loan as set forth in the RWT-Guaranteed Rate Agreement.
Either the Mortgagor is a natural person or the Mortgagor is an inter-vivos
trust acceptable to Xxxxxx Xxx;
(m)
Each
Mortgage Loan is covered by an ALTA lender’s title insurance policy or other
generally acceptable form of policy or insurance acceptable to Xxxxxx Xxx
or
Xxxxxxx Mac, issued by a title insurer acceptable to Xxxxxx Mae or Xxxxxxx
Mac
and qualified to do business in the jurisdiction where the Mortgaged Property
is
located, insuring (subject to the exceptions contained in (j)(1), (2) and
(3)
above) the Company, its successors and assigns, as to the first priority
lien of
the Mortgage in the original principal amount of the Mortgage Loan.
Additionally, such policy affirmatively insures ingress and egress to and
from
the Mortgaged Property. Where required by applicable state law or regulation,
the Mortgagor has been given the opportunity to choose the carrier of the
required mortgage title insurance. The Company, its successors
and assigns, are the sole insured of such lender’s title insurance policy, such
title insurance
policy has been duly and validly endorsed to the Purchaser or the assignment
to
the Purchaser
of the Company’s interest therein does not require the consent of or
notification to the insurer
and such lender’s title insurance policy is in full force and effect and will be
in full force and
effect upon the consummation of the transactions contemplated by the
RWT-Guaranteed Rate Agreement and the related Purchase Price and Terms
Letter.
No claims have been made under such lender’s title insurance policy, and no
prior holder of the related Mortgage, including the Company, has done,
by act or
omission, anything which would impair the coverage of such lender’s title
insurance policy;
(n)
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 permitting acceleration; and neither RWT Holdings
nor
any prior mortgagee has waived any default, breach, violation or event
permitting acceleration;
(o)
As of
the related Closing Date, there are no mechanics’ or similar liens or claims
which have been filed for work, labor or material (and no rights outstanding
that under law could give rise to such liens) affecting the related Mortgaged
Property which are or may be liens prior to or equal to the lien of the
related
Mortgage;
(p)
All
improvements subject to the Mortgage which were considered in determining
the
Appraised Value of the Mortgaged Property lie wholly within the boundaries
and
building restriction lines of the Mortgaged Property (and wholly within
the
project with respect to a condominium unit) and no improvements on adjoining
properties encroach upon the Mortgaged Property except those which are
insured
against by the title insurance policy referred to in clause (m) above and
all
improvements on the property comply with all applicable zoning and subdivision
laws and ordinances;
(q)
The
Mortgage Loan was originated by or for the Company. The Mortgage Loan complies
with all the terms, conditions and requirements of the Company’s Underwriting
Standards in effect at the time of origination of such Mortgage Loan. The
Mortgage Notes and Mortgages
(exclusive of any riders) are on forms generally acceptable to Xxxxxx Xxx
or
Xxxxxxx Mac.
The
Company is currently selling loans to Xxxxxx Mae and/or Xxxxxxx Mac which
are
the same
document forms as the Mortgage Notes and Mortgages (inclusive of any riders).
The Mortgage Loan bears interest at the Mortgage Interest Rate set forth
in the
related Mortgage Loan
Schedule, and Monthly Payments under the Mortgage Note are due and payable
on
the first day
of
each month. The Mortgage contains the usual and enforceable provisions
of the
originator at the time of origination for the acceleration of the payment
of the
unpaid principal amount of the Mortgage Loan if the related Mortgaged Property
is sold without the prior consent of the mortgagee thereunder;
(r)
As of
the related Closing Date, the Mortgaged Property is not subject to any
material
damage by waste, fire, earthquake, windstorm, flood or other casualty.
At
origination of the Mortgage Loan there was, and there currently is, no
proceeding pending for the total or partial condemnation of the Mortgaged
Property. There have not been any condemnation proceedings with respect
to the
Mortgaged Property and there are no such proceedings scheduled to commence
at a
future date;
(s)
The
Mortgage and related Mortgage Note contain customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate
for the
realization against the Mortgaged Property of the benefits of the security
provided thereby,
including
(i) in the case of a Mortgage designated as a deed of trust, by trustee’s sale,
and (ii)
otherwise
by judicial foreclosure. Following the date of origination of the Mortgage
Loan,
the
Mortgaged
Property has not been subject to any bankruptcy proceeding or foreclosure
proceeding and the Mortgagor has not filed for protection under applicable
bankruptcy laws. There is no homestead or other exemption or right available
to
the Mortgagor or any other person which would interfere with the right
to sell
the Mortgaged Property at a trustee’s sale or the right to foreclose the
Mortgage;
(t)
The
Mortgage Note and Mortgage are on forms acceptable to Xxxxxx Mae or Xxxxxxx
Mac;
(u)
If
the Mortgage constitutes a deed of trust, a trustee, authorized and duly
qualified if required under applicable law to act as such, has been properly
designated and currently so serves and is named in the Mortgage, and no
fees or
expenses are or will become payable by the Purchaser to the trustee under
the
deed of trust, except in connection with a trustee’s sale or attempted sale
after default by the Mortgagor;
(v)
The
Mortgage File contains an appraisal of the related Mortgaged Property signed
prior to the final approval of the mortgage loan application by a Qualified
Appraiser, who had no interest, direct or indirect, in the Mortgaged Property
or
in any loan made on the security thereof, and whose compensation is not
affected
by the approval or disapproval of the Mortgage Loan, and the appraisal
and
appraiser both satisfy the requirements of Xxxxxx Mae or Xxxxxxx Mac and
Title
XI of FIRREA and the regulations promulgated thereunder, all as in effect
on the
date the Mortgage Loan was originated. The appraisal is in a form acceptable
to
Xxxxxx Mae or Xxxxxxx Mac;
(w)
All
parties which have had any interest in the Mortgage, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) (A) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the
Mortgaged
Property is located, and (B) (1) organized under the laws of such state,
or (2)
qualified to do business in such state, or (3) federal savings and loan
associations or national banks or a Federal Home Loan Bank or savings bank
having principal offices in such state, or (4) not doing business in such
state;
(x)
As of
the related Closing Date, the related Mortgage Note is not and has not
been
secured by any collateral except the lien of the corresponding Mortgage
and the
security interest of any applicable security agreement or chattel mortgage
referred to in (j) above and such collateral does not serve as security
for any
other obligation;
(y)
The
Mortgagor has received all disclosure materials required by applicable
law with
respect to the making of such mortgage loans;
(z)
The
Mortgage Loan does not contain “graduated payment” features and does
not
have
a shared appreciation or other contingent interest feature; no Mortgage
Loan
contains any
buydown provisions;
(aa)
As
of the related Closing Date, the Mortgagor is not in bankruptcy and the
Mortgagor is not insolvent and RWT Holdings has no knowledge of any
circumstances or condition with respect to the Mortgage, the Mortgaged
Property,
the Mortgagor or the Mortgagor’s credit standing that could reasonably be
expected to cause investors to regard the Mortgage Loan as an unacceptable
investment, cause the Mortgage Loan to become delinquent, or materially
adversely affect the value or marketability of the Mortgage Loan;
(bb)
The
Mortgage Loans have an original term to maturity of not more than 40 years
with
interest payable in arrears on the first day of each month. Each Mortgage
Note
requires a monthly payment, which is sufficient to fully amortize the unpaid
principal balance over the remaining term and to pay interest at the related
Mortgage Interest Rate. Notwithstanding the immediately preceding sentence
with
respect to Mortgage Loans with an initial “interest only” payment period, the
monthly payments due under the related Mortgage Note satisfy only the monthly
interest on the unpaid principal balance of the applicable Mortgage Loan.
After
the initial “interest only” period, each Mortgage Note requires a monthly
payment, which is sufficient to fully amortize the unpaid principal balance
over
the remaining term and to pay interest at the related Mortgage Interest
Rate. In
any case, no Mortgage Loan contains terms or provisions which would result
in
negative amortization;
(cc)
If a
Mortgage Loan has an LTV greater than 80%, the Mortgage Loan will have
mortgage
insurance in accordance with the terms of the Xxxxxx Mae Guides and will
be
insured as to payment defaults by a Primary Mortgage Insurance Policy issued
by
a Qualified Insurer. All provisions of such Primary Mortgage Insurance
Policy
have been and are being complied with, such policy is in full force and
effect,
and all premiums due thereunder have been paid. No action, inaction, or
event
has occurred and no state of facts exists that has, or will result in the
exclusion from, denial of, or defense to coverage. Any Mortgage Loan subject
to
a Primary Mortgage Insurance Policy obligates the Mortgagor thereunder
to
maintain the Primary Mortgage Insurance Policy and to pay all premiums
and
charges in connection therewith. The mortgage interest rate for the Mortgage
Loan as set forth on the related Mortgage Loan Schedule is net of any such
insurance premium. No Mortgage Loan is subject to a lender-paid mortgage
insurance policy;
(dd)
As
to any Mortgage Loan which is not a MERS Mortgage Loan, the Assignment
of
Mortgage is in recordable form and is acceptable for recording under the
laws of
the jurisdiction in which the Mortgaged Property is located;
(ee)
The
Mortgaged Property is located in the state identified in the related Mortgage
Loan Schedule and consists of a single parcel of real property with a detached
single family residence erected thereon, or a townhouse, or a two-to four-family
dwelling, or an individual condominium unit in a condominium project, or
an
individual unit in a planned unit development or a de minimis planned unit
development, provided, however, that no residence or dwelling is a single
parcel
of real property with a cooperative housing corporation erected thereon,
or a
mobile home. As of the date of origination, no portion of the Mortgaged
Property
was used for commercial purposes, and since the date or origination no
portion
of the Mortgaged Property has been used for commercial purposes;
(ff)
Payments of principal and/or interest on the Mortgage Loan commenced no
more
than sixty (60) days after the funds were disbursed in connection with
the
Mortgage Loan. The Mortgage Note is payable on the first day of each month.
After the initial “interest only” payment period, if any, the Mortgage Note in
payable in equal monthly installments of principal and interest, with interest
calculated and payable in arrears, sufficient to amortize the Mortgage
Loan
fully by the stated maturity date, over an original term of not more than
thirty
years from commencement
of amortization;
(gg)
The
Mortgage Loans may be subject to a Prepayment Penalty as identified on
the
Mortgage Loan Schedule, except that no Mortgage Loan contains any
Prepayment Penalty that extends beyond five years after the date of
origination;
(hh)
As
of the related Closing Date, the Mortgaged Property is lawfully occupied
under
applicable law, and all inspections, licenses and certificates required
to be
made or issued with respect to all occupied portions of the Mortgaged Property
and, with respect to the use and occupancy of the same, including but not
limited to certificates of occupancy and fire underwriting certificates,
have
been made or obtained from the appropriate authorities;
(ii)
If
the Mortgaged Property is a condominium unit or a planned unit development
(other than a de minimis planned unit development), or stock in a cooperative
housing corporation, such condominium, cooperative or planned unit development
project meets the eligibility requirements of Xxxxxx Xxx and Xxxxxxx
Mac;
(jj)
There is no pending action or proceeding directly involving the Mortgaged
Property in which compliance with any environmental law, rule or regulation
is
an issue; there is no violation of any environmental law, rule or regulation
with respect to the Mortgaged Property;
and
nothing further remains to be done to satisfy in full all requirements
of each
such law, rule or
regulation
constituting a prerequisite to use and enjoyment of said property;
(kk)
The
Mortgagor has not notified RWT Holdings requesting relief under the
Servicemembers’ Civil Relief Act, formerly known as the Soldiers’ and Sailors’
Civil Relief Act
of
1940,
and RWT Holdings has no knowledge of any relief requested or allowed to
the
Mortgagor
under
the
Servicemembers’ Civil Relief Act;
(ll)
As
of the related Closing Date, no Mortgage Loan was in construction or
rehabilitation status or has facilitated the trade-in or exchange of a
Mortgaged
Property;
(mm)
No
action has been taken or failed to be taken by RWT Holdings on or prior
to the
Closing Date which has resulted or will result in an exclusion from, denial
of,
or defense to coverage under any insurance policy related to a Mortgage
Loan
(including, without limitation, any
exclusions, denials or defenses which would limit or reduce the availability
of
the timely payment
of the full amount of the loss otherwise due thereunder to the insured)
whether
arising out
of
actions, representations, errors, omissions, negligence, or fraud of RWT
Holdings, or for any other
reason under such coverage;
(nn)
The
Mortgage Loan was originated by a mortgagee approved by the Secretary of
Housing
and Urban Development pursuant to sections 203 and 211 of the National
Housing
Act, a savings and loan association, a savings bank, a commercial bank,
credit
union, insurance company or similar institution which is supervised and
examined
by a federal or state authority;
(oo)
No
Mortgaged Property is subject to a ground lease;
(pp)
With
respect to any broker fees collected and paid on any of the Mortgage Loans,
all
broker fees have been properly assessed to the Mortgagor and no claims
will
arise as to broker fees that are double charged and for which the Mortgagor
would be entitled to reimbursement;
(qq)
With
respect to any Mortgage Loan as to which an affidavit has been delivered
to the
Purchaser certifying that the original Mortgage Note has been lost or destroyed
and not been replaced, if such Mortgage Loan is subsequently in default,
the
enforcement of such Mortgage Loan will not be materially adversely affected
by
the absence of the original Mortgage Note;
(rr)
Each
Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A)
of
the Code and Treasury Regulations Section 1.860G-2(a)(1);
(ss)
Except as provided in Section 2.07, the Mortgage Note, the Mortgage, the
Assignment of Mortgage and the other Mortgage Loan Documents set forth
in
Exhibit A-1 to the Agreement and required to be delivered on the related
Closing
Date have been delivered to the Purchaser or its designee all in compliance
with
the specific requirements of the RWT-Guaranteed Rate Agreement. With respect
to
each Mortgage Loan, the Company is in possession of a complete Mortgage
File and
Servicing File except for such documents as have been delivered to the
Purchaser
or its designee;
(tt)
All
information supplied by, on behalf of, or concerning the
Mortgagor is
true,
accurate and complete and does not contain any statement that at the time
provided and as of
the
Closing Date is or will be inaccurate or misleading in any material
respect;
(uu)
There does not exist on the related Mortgage Property any hazardous substances,
hazardous wastes or solid wastes, as such terms are defined in the Comprehensive
Environmental Response Compensation and Liability Act, the Resource Conservation
and Recovery Act of 1976, or other federal, state or local environmental
legislation;
(vv)
All
disclosure materials required by applicable law with respect to the making
of
fixed rate and adjustable rate mortgage loans have been received by the
borrower;
(ww)
No
Mortgage Loan had a Loan-to-Value Ratio at the time of origination of
more
than
95%;
(xx)
None
of the Mortgage Loans are subject to the Home Ownership and Equity Protection
Act of 1994 or any comparable state law;
(yy)
None
of the proceeds of the Mortgage Loan were used to finance single premium
credit
insurance policies;
(zz)
Any
principal advances made to the Mortgagor prior to the Closing Date have
been
consolidated with the outstanding principal amount secured by the Mortgage,
and
the secured principal amount, as consolidated, bears a single interest
rate and
single repayment term. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having first lien priority by
a title
insurance policy, an endorsement to the policy insuring the mortgagee’s
consolidated interest or by other title evidence acceptable to Xxxxxx Xxx
and
Xxxxxxx Mac. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(aaa)
Interest on each Mortgage Loan is calculated on the basis of a 360-day
year
consisting of twelve 30-day months;
(bbb)
No
Mortgage Loan is a Balloon Mortgage Loan;
(ccc)
With respect to each MERS Mortgage Loan, a MIN has been assigned by MERS
and
such MIN is accurately provided on the Mortgage Loan Schedule. The related
assignment of Mortgage to MERS has been duly and properly recorded;
(ddd)
With respect to each MERS Mortgage Loan, RWT Holdings has not received
any
notice of liens or legal actions with respect to such Mortgage Loan and
no such
notices have been electronically posted by MERS;
(eee)
None of the Mortgaged Properties are manufactured housing;
(fff)
With respect to each Mortgage Loan, the Company has fully and accurately
furnished complete information on the related borrower credit files to
Equifax,
Experian and Trans Union Credit Information Company, in accordance with
the Fair
Credit Reporting Act and its implementing regulations;
(ggg)
The
Company has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2001
(collectively, the “Anti-Money Laundering Laws”); and the Company has
established an anti-money laundering compliance program as required by
the
Anti-Money Laundering Laws;
(hhh)
Each Mortgage Loan at the time it was made complied in all material respects
with applicable local, state, and federal laws, including, but not limited
to,
all applicable predatory and abusive lending laws;
(iii)
No
Mortgage Loan is a High Cost or Covered Loan, as applicable and no mortgage
loan
is a “high cost” or “covered” mortgage loan, as applicable (as such terms are
defined in the then current Standard and Poor’s LEVELS Glossary which is now
Version 6.0, Appendix E). No Mortgage Loan is in violation of any applicable
federal, state, or local predatory or abusive lending law. Any breach of
this
representation shall be deemed to materially and adversely affect the value
of
the Mortgage Loan and shall require a repurchase of the affected Mortgage
Loan;
(jjj)
No
Mortgage Loan was originated on or after October 1, 2002 and prior to March
7,
2003, which is secured by property located in the State of Georgia. No
Mortgage
Loan was originated on or after March 7, 2003 which is a “high cost home loan”
as defined under the Georgia Fair Lending Act. Any breach of this representation
shall be deemed to materially and adversely
affect the value of the Mortgage Loan and shall require a repurchase of
the
affected Mortgage
Loan;
(kkk)
No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Jersey
Home Ownership Act, which became effective November 27, 2003; and
(lll)
There were no
adverse selection procedures used in selecting the Mortgage Loan from among
the
residential mortgage loans which were available for inclusion in the Mortgage
Loans.
XVI.
|
Seller’s
Purchase, Warranties and Interim Servicing Agreement, dated as
of June 1,
2006 by and between Redwood Mortgage Funding Inc. (“RMF”) and Provident
Funding Associates, LLP (“Provident”), and an Assignment dated [January
15], 2007, between RMF and RWT Holdings (together, the “Provident-RWT
Agreement”).
|
With
respect to each Mortgage Loan, RWT Holdings hereby makes the following
representations and warranties. Such representations and warranties speak
as of
the Closing Date with respect to the Mortgage Loans (as such capitalized
terms
are defined in the Pooling and Servicing Agreement), unless otherwise indicated.
Capitalized terms are as defined in this Schedule A or in the Provident-RWT
Agreement.
(a) The
information set forth in the related Mortgage Loan Schedule, including
any
diskette or other related data tapes sent to the Purchaser, is complete,
true
and correct in all material respects and the
information provided to the rating agencies, including the loan level detail,
is
true and correct according to the rating agency requirements;
(b) The
Mortgage creates a first lien or a first priority ownership interest in
an
estate in fee simple in real property securing the related Mortgage
Note;
(c) All
payments due on or prior to the related Closing Date for such Mortgage
Loan have
been made as of the related Closing Date, the Mortgage Loan is not delinquent
in
payment more than 30 days and has not been dishonored; there are no material
defaults under the terms of the Mortgage Loan; the Company has not advanced
funds, or induced, solicited or knowingly received any advance of funds
from a
party other than the owner of the Mortgaged Property subject to the Mortgage,
directly or indirectly, for the payment of any amount required by the Mortgage
Loan; no payment with respect to each Mortgage Loan has been delinquent
during
the preceding twelve-month period;
(d) All
taxes, governmental assessments, insurance premiums, water, sewer and municipal
charges, leasehold payments or ground rents which previously became due
and
owing have been paid, or escrow funds have been established in an amount
sufficient to pay for every such escrowed item which remains unpaid and
which
has been assessed but is not yet due and payable;
(e) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments, which have been
recorded
to the extent any such recordation is required by law. No instrument of
waiver,
alteration or modification has been executed, and no Mortgagor has been
released, in whole or in part, from the terms thereof except in connection
with
an assumption agreement and which assumption agreement is part of the Mortgage
File and the terms of which are reflected in the related Mortgage Loan
Schedule;
the substance of any such waiver, alteration or modification has been approved
by the issuer of any related Primary Mortgage Insurance Policy and title
insurance policy, to the extent required by the related policies;
(f) The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including, without limitation, the defense
of
usury, nor will the operation of any of the terms of the Mortgage Note
or the
Mortgage, or the exercise of any right thereunder, render the Mortgage
Note or
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including the defense of
usury,
and no such right of rescission, set-off, counterclaim or defense has been
asserted with respect thereto; and the Mortgagor was not a debtor in any
state
or federal bankruptcy or insolvency proceeding at the time the Mortgage
Loan was
originated;
(g) All
buildings or other customarily insured improvements upon the Mortgaged
Property
are insured by an insurer acceptable under the Xxxxxx Mae Guides, against
loss
by fire, hazards of extended coverage and such other hazards as are provided
for
in the Xxxxxx Xxx Guides or by the Xxxxxxx Mac Guides, in an amount representing
coverage not less than the lesser of (i) the maximum insurable value of
the
improvements securing such Mortgage Loans, and (ii) the greater of (a)
the
outstanding principal balance of the Mortgage Loan, and (b) an amount such
that
the proceeds thereof shall be sufficient to prevent the Mortgagor and/or
the
mortgagee from becoming a co-insurer. All such standard hazard policies
are in
full force and effect and on the date of origination contained a standard
mortgagee clause naming the Company and its successors in interest and
assigns
as loss payee and such clause is still in effect and all premiums due thereon
have been paid. If required by the Flood Disaster Protection Act of 1973,
as
amended, the Mortgage Loan is covered by a flood insurance policy meeting
the
requirements of the current guidelines of the Federal Insurance Administration
which policy conforms to Xxxxxx Xxx and Xxxxxxx Mac requirements, in an
amount
not less than the amount required by the Flood Disaster Protection Act
of 1973,
as amended. Such policy was issued by an insurer acceptable under Xxxxxx
Mae or
Xxxxxxx Mac guidelines. The Mortgage obligates the Mortgagor thereunder
to
maintain all such insurance at the Mortgagor’s cost and expense, and upon the
Mortgagor’s failure to do so, authorizes the holder of the Mortgage to maintain
such insurance at the Mortgagor’s cost and expense and to seek reimbursement
therefor from the Mortgagor;
(h) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures,
consumer
credit protection, equal credit opportunity, fair housing, or disclosure
laws
applicable to the Mortgage Loan have been complied with in all material
respects;
(i) The
Mortgage has not been satisfied, canceled or subordinated, in whole or
in part,
or rescinded, and the Mortgaged Property has not been released from the
lien of
the Mortgage, in whole or in part nor has any instrument been executed
that
would effect any such release, cancellation, subordination or rescission.
The
Company has not waived the performance by the Mortgagor of any action,
if the
Mortgagor’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Company waived any default resulting from any action
or
inaction by the Mortgagor;
(j) The
related Mortgage is a valid, subsisting, enforceable and perfected first
lien on
the Mortgaged Property including all buildings on the Mortgaged Property
and all
installations and mechanical, electrical, plumbing, heating and air conditioning
systems affixed to such buildings, and all additions, alterations and
replacements made at any time with respect to the foregoing securing the
Mortgage Note’s original principal balance. The Mortgage and the Mortgage Note
do not contain any evidence of any security interest or other interest
or right
thereto. Such lien is free and clear of all adverse claims, liens and
encumbrances having priority over the first lien of the Mortgage subject
only to
(1) the lien of non-delinquent current real property taxes and assessments
not
yet due and payable, (2) covenants, conditions and restrictions, rights
of way,
easements and other matters of the public record as of the date of recording
which are acceptable to mortgage lending institutions generally and either
(A)
which are referred to or otherwise considered in the appraisal made for
the
originator of the Mortgage Loan, or (B) which do not adversely affect the
appraised value of the Mortgaged Property as set forth in such appraisal,
and
(3) other matters to which like properties are commonly subject which do
not
materially interfere with the benefits of the security intended to be provided
by the Mortgage or the use, enjoyment, value or marketability of the related
Mortgaged Property. Any security agreement, chattel mortgage or equivalent
document related to and delivered in connection with the Mortgage Loan
establishes and creates (1) a valid, subsisting, enforceable and perfected
first
lien and first priority security interest and on the property described
therein,
and the Company has the full right to sell and assign the same to the
Purchaser;
(k) The
Mortgage Note and the related Mortgage are original and genuine and each
is the
legal, valid and binding obligation of the maker thereof, enforceable in
all
respects in accordance with its terms subject to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application affecting
the
rights of creditors and by general equitable principles and the Company
has
taken all action necessary to transfer such rights of enforceability to
the
Purchaser. All parties to the Mortgage Note and the Mortgage had the legal
capacity to enter into the Mortgage Loan and to execute and deliver the
Mortgage
Note and the Mortgage. The Mortgage Note and the Mortgage have been duly
and
properly executed by such parties. No fraud, error, omission, misrepresentation,
negligence or similar occurrence with respect to a Mortgage Loan has taken
place
on the part of the Company or the Mortgagor, or, on the part of any other
party
involved in the origination of the Mortgage Loan. The proceeds of the Mortgage
Loan have been fully disbursed and there is no requirement for future advances
thereunder, and any and all requirements as to completion of any on-site
or
off-site improvements and as to disbursements of any escrow funds therefor
have
been complied with. All costs, fees and expenses incurred in making or
closing
the Mortgage Loan and the recording of the Mortgage were paid or are in
the
process of being paid, and the Mortgagor is not entitled to any refund
of any
amounts paid or due under the Mortgage Note or Mortgage;
(l) The
Company is the sole owner of record and holder of the Mortgage Loan and
the
indebtedness evidenced by the Mortgage Note, and upon recordation the Purchaser
or its designee will be the owner of record of the Mortgage and the indebtedness
evidenced by the Mortgage Note, and upon the sale of the Mortgage Loan
to the
Purchaser, the Company will retain the Servicing File in trust for the
Purchaser
only for the purpose of interim servicing and supervising the interim servicing
of the Mortgage Loan. Immediately prior to the transfer and assignment
to the
Purchaser on the related Closing Date, the Mortgage Loan, including the
Mortgage
Note and the Mortgage, were not subject to an assignment or pledge, and
the
Company had good and marketable title to and was the sole owner thereof
and had
full right to transfer and sell the Mortgage Loan to the Purchaser free
and
clear of any encumbrance, equity, lien, pledge, charge, claim or security
interest and has the full right and authority subject to no interest or
participation of, or agreement with, any other party, to sell and assign
the
Mortgage Loan pursuant to the Provident-RWT Agreement and following the
sale of
the Mortgage Loan, the Purchaser will own such Mortgage Loan free and clear
of
any encumbrance, equity, participation interest, lien, pledge, charge,
claim or
security interest. The Company intends to relinquish all rights to possess,
control and monitor the Mortgage Loan, except for the purposes of servicing
the
Mortgage Loan as set forth in the Provident-RWT Agreement. Either the Mortgagor
is a natural person or the Mortgagor is an inter-vivos trust acceptable
to
Xxxxxx Xxx;
(m)
Each
Mortgage Loan is covered by an ALTA lender’s title insurance policy or other
generally acceptable form of policy or insurance acceptable to Xxxxxx Xxx
or
Xxxxxxx Mac, issued by a title insurer acceptable to Xxxxxx Mae or Xxxxxxx
Mac
and qualified to do business in the jurisdiction where the Mortgaged Property
is
located, insuring (subject to the exceptions contained in (j)(1), (2) and
(3)
above) the Company, its successors and assigns, as to the first priority
lien of
the Mortgage in the original principal amount of the Mortgage Loan.
Additionally, such policy affirmatively insures ingress and egress to and
from
the Mortgaged Property. Where required by applicable state law or regulation,
the Mortgagor has been given the opportunity to choose the carrier of the
required mortgage title insurance. The Company, its successors and assigns,
are
the sole insured of such lender’s title insurance policy, such title insurance
policy has been duly and validly endorsed to the Purchaser or the assignment
to
the Purchaser of the Company’s interest therein does not require the consent of
or notification to the insurer and such lender’s title insurance policy is in
full force and effect and will be in full force and effect upon the consummation
of the transactions contemplated by the Provident-RWT Agreement and the
related
Purchase Price and Terms Letter. No claims have been made under such lender’s
title insurance policy, and no prior holder of the related Mortgage, including
the Company, has done, by act or omission, anything which would impair
the
coverage of such lender’s title insurance policy;
(n) 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 permitting acceleration;
and
neither the Company nor any prior mortgagee has waived any default, breach,
violation or event permitting acceleration;
(o) As
of the
related Closing Date, there are no mechanics’ or similar liens or claims which
have been filed for work, labor or material (and no rights outstanding
that
under law could give rise to such liens) affecting the related Mortgaged
Property which are or may be liens prior to or equal to the lien of the
related
Mortgage;
(p) All
improvements subject to the Mortgage which were considered in determining
the
Appraised Value of the Mortgaged Property lie wholly within the boundaries
and
building restriction lines of the Mortgaged Property (and wholly within
the
project with respect to a condominium unit) and no improvements on adjoining
properties encroach upon the Mortgaged Property except those which are
insured
against by the title insurance policy referred to in clause (m) above and
all
improvements on the property comply with all applicable zoning and subdivision
laws and ordinances;
(q) The
Mortgage Loan was originated by or for the Company. The Mortgage Loan complies
with all the terms, conditions and requirements of the Company’s Underwriting
Standards in effect at the time of origination of such Mortgage Loan. The
Mortgage Notes and Mortgages (exclusive of any riders) are on forms generally
acceptable to Xxxxxx Xxx or Xxxxxxx Mac. The Company is currently selling
loans
to Xxxxxx Mae and/or Xxxxxxx Mac which are the same document forms as the
Mortgage Notes and Mortgages (inclusive of any riders). The Mortgage Loan
bears
interest at the Mortgage Interest Rate set forth in the related Mortgage
Loan
Schedule, and Monthly Payments under the Mortgage Note are due and payable
on
the first day of each month. The Mortgage contains the usual and enforceable
provisions of the originator at the time of origination for the acceleration
of
the payment of the unpaid principal amount of the Mortgage Loan if the
related
Mortgaged Property is sold without the prior consent of the mortgagee
thereunder;
(r) As
of the
related Closing Date, the Mortgaged Property is not subject to any material
damage by waste, fire, earthquake, windstorm, flood or other casualty.
At
origination of the Mortgage Loan there was, and there currently is, no
proceeding pending for the total or partial condemnation of the Mortgaged
Property. There have not been any condemnation proceedings with respect
to the
Mortgaged Property and there are no such proceedings scheduled to commence
at a
future date;
(s) The
Mortgage and related Mortgage Note contain customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate
for the
realization against the Mortgaged Property of the benefits of the security
provided thereby, including (i) in the case of a Mortgage designated as
a deed
of trust, by trustee’s sale, and (ii) otherwise by judicial foreclosure.
Following the date of origination of the Mortgage Loan, the Mortgaged Property
has not been subject to any bankruptcy proceeding or foreclosure proceeding
and
the Mortgagor has not filed for protection under applicable bankruptcy
laws.
There is no homestead or other exemption or right available to the Mortgagor
or
any other person which would interfere with the right to sell the Mortgaged
Property at a trustee’s sale or the right to foreclose the
Mortgage;
(t) The
Mortgage Note and Mortgage are on forms acceptable to Xxxxxx Mae or Xxxxxxx
Mac;
(u) If
the
Mortgage constitutes a deed of trust, a trustee, authorized and duly qualified
if required under applicable law to act as such, has been properly designated
and currently so serves and is named in the Mortgage, and no fees or expenses
are or will become payable by the Purchaser to the trustee under the deed
of
trust, except in connection with a trustee’s sale or attempted sale after
default by the Mortgagor;
(v) The
Mortgage File contains an appraisal of the related Mortgaged Property signed
prior to the final approval of the mortgage loan application by a Qualified
Appraiser, who had no interest, direct or indirect, in the Mortgaged Property
or
in any loan made on the security thereof, and whose compensation is not
affected
by the approval or disapproval of the Mortgage Loan, and the appraisal
and
appraiser both satisfy the requirements of Xxxxxx Mae or Xxxxxxx Mac and
Title
XI of FIRREA and the regulations promulgated thereunder, all as in effect
on the
date the Mortgage Loan was originated. The appraisal is in a form acceptable
to
Xxxxxx Mae or Xxxxxxx Mac;
(w) All
parties which have had any interest in the Mortgage, whether as mortgagee,
assignee, pledgee or otherwise, are (or, during the period in which they
held
and disposed of such interest, were) (A) in compliance with any and all
applicable licensing requirements of the laws of the state wherein the
Mortgaged
Property is located, and (B) (1) organized under the laws of such state,
or (2)
qualified to do business in such state, or (3) federal savings and loan
associations or national banks or a Federal Home Loan Bank or savings bank
having principal offices in such state, or (4) not doing business in such
state;
(x)
As of
the related Closing Date, the related Mortgage Note is not and has not
been
secured by any collateral except the lien of the corresponding Mortgage
and the
security interest of any applicable security agreement or chattel mortgage
referred to in (j) above and such collateral does not serve as security
for any
other obligation;
(y) The
Mortgagor has received all disclosure materials required by applicable
law with
respect to the making of such mortgage loans;
(z) The
Mortgage Loan does not contain “graduated payment” features and does not have a
shared appreciation or other contingent interest feature; no Mortgage Loan
contains any buydown provisions;
(aa) As
of the
related Closing Date, the Mortgagor is not in bankruptcy and the Mortgagor
is
not insolvent and the Company has no knowledge of any circumstances or
condition
with respect to the Mortgage, the Mortgaged Property, the Mortgagor or
the
Mortgagor’s credit standing that could reasonably be expected to cause investors
to regard the Mortgage Loan as an unacceptable investment, cause the Mortgage
Loan to become delinquent, or materially adversely affect the value or
marketability of the Mortgage Loan;
(bb) The
Mortgage Loans have an original term to maturity of not more than 40 years
with
interest payable in arrears on the first day of each month. Each Mortgage
Note
requires a monthly payment, which is sufficient to fully amortize the unpaid
principal balance over the remaining term and to pay interest at the related
Mortgage Interest Rate. Notwithstanding the immediately preceding sentence
with
respect to Mortgage Loans with an initial “interest only” payment period, the
monthly payments due under the related Mortgage Note satisfy only the monthly
interest on the unpaid principal balance of the applicable Mortgage Loan.
After
the initial “interest only” period, each Mortgage Note requires a monthly
payment, which is sufficient to fully amortize the unpaid principal balance
over
the remaining term and to pay interest at the related Mortgage Interest
Rate. In
any case, no Mortgage Loan contains terms or provisions which would result
in
negative amortization;
(cc) If
a
Mortgage Loan has an LTV greater than 80%, the Mortgage Loan will have
mortgage
insurance in accordance with the terms of the Xxxxxx Mae Guides and will
be
insured as to payment defaults by a Primary Mortgage Insurance Policy issued
by
a Qualified Insurer. All provisions of such Primary Mortgage Insurance
Policy
have been and are being complied with, such policy is in full force and
effect,
and all premiums due thereunder have been paid. No action, inaction, or
event
has occurred and no state of facts exists that has, or will result in the
exclusion from, denial of, or defense to coverage. Any Mortgage Loan subject
to
a Primary Mortgage Insurance Policy obligates the Mortgagor thereunder
to
maintain the Primary Mortgage Insurance Policy and to pay all premiums
and
charges in connection therewith. The mortgage interest rate for the Mortgage
Loan as set forth on the related Mortgage Loan Schedule is net of any such
insurance premium. No Mortgage Loan is subject to a lender-paid mortgage
insurance policy;
(dd) As
to any
Mortgage Loan which is not a MERS Mortgage Loan, the Assignment of Mortgage
is
in recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located;
(ee) The
Mortgaged Property is located in the state identified in the related Mortgage
Loan Schedule and consists of a single parcel of real property with a detached
single family residence erected thereon, or a townhouse, or a two-to four-family
dwelling, or an individual condominium unit in a condominium project, or
an
individual unit in a planned unit development or a de minimis planned unit
development, provided, however, that no residence or dwelling is a single
parcel
of real property with a cooperative housing corporation erected thereon,
or a
mobile home. As of the date of origination, no portion of the Mortgaged
Property
was used for commercial purposes, and since the date or origination no
portion
of the Mortgaged Property has been used for commercial purposes;
(ff) Payments
of principal and/or interest on the Mortgage Loan commenced no more than
sixty
(60) days after the funds were disbursed in connection with the Mortgage
Loan.
The Mortgage Note is payable on the first day of each month. After the
initial
“interest only” payment period, if any, the Mortgage Note in payable in equal
monthly installments of principal and interest, with interest calculated
and
payable in arrears, sufficient to amortize the Mortgage Loan fully by the
stated
maturity date, over an original term of not more than thirty years from
commencement of amortization;
(gg) The
Mortgage Loans may be subject to a Prepayment Penalty as identified on
the
Mortgage Loan Schedule, except that no Mortgage Loan contains any
Prepayment Penalty that extends beyond five years after the date of
origination;
(hh) As
of the
related Closing Date, the Mortgaged Property is lawfully occupied under
applicable law, and all inspections, licenses and certificates required
to be
made or issued with respect to all occupied portions of the Mortgaged Property
and, with respect to the use and occupancy of the same, including but not
limited to certificates of occupancy and fire underwriting certificates,
have
been made or obtained from the appropriate authorities;
(ii) If
the
Mortgaged Property is a condominium unit or a planned unit development
(other
than a de minimis planned unit development), or stock in a cooperative
housing
corporation, such condominium, cooperative or planned unit development
project
meets the eligibility requirements of Xxxxxx Xxx and Xxxxxxx Mac;
(jj)
There is
no pending action or proceeding directly involving the Mortgaged Property
in
which compliance with any environmental law, rule or regulation is an issue;
there is no violation of any environmental law, rule or regulation with
respect
to the Mortgaged Property; and nothing further remains to be done to satisfy
in
full all requirements of each such law, rule or regulation constituting
a
prerequisite to use and enjoyment of said property;
(kk) The
Mortgagor has not notified the Company requesting relief under the
Servicemembers’ Civil Relief Act, formerly known as the Soldiers’ and Sailors’
Civil Relief Act of 1940, and the Company has no knowledge of any relief
requested or allowed to the Mortgagor under the Servicemembers’ Civil Relief
Act;
(ll) As
of the
related Closing Date, no Mortgage Loan was in construction or rehabilitation
status or has facilitated the trade-in or exchange of a Mortgaged
Property;
(mm) No
action
has been taken or failed to be taken by the Company on or prior to the
Closing
Date which has resulted or will result in an exclusion from, denial of,
or
defense to coverage under any insurance policy related to a Mortgage Loan
(including, without limitation, any exclusions, denials or defenses which
would
limit or reduce the availability of the timely payment of the full amount
of the
loss otherwise due thereunder to the insured) whether arising out of actions,
representations, errors, omissions, negligence, or fraud of the Company,
or for
any other reason under such coverage;
(nn) The
Mortgage Loan was originated by a mortgagee approved by the Secretary of
Housing
and Urban Development pursuant to sections 203 and 211 of the National
Housing
Act, a savings and loan association, a savings bank, a commercial bank,
credit
union, insurance company or similar institution which is supervised and
examined
by a federal or state authority;
(oo) No
Mortgaged Property is subject to a ground lease;
(pp) With
respect to any broker fees collected and paid on any of the Mortgage Loans,
all
broker fees have been properly assessed to the Mortgagor and no claims
will
arise as to broker fees that are double charged and for which the Mortgagor
would be entitled to reimbursement;
(qq) With
respect to any Mortgage Loan as to which an affidavit has been delivered
to the
Purchaser certifying that the original Mortgage Note has been lost or destroyed
and not been replaced, if such Mortgage Loan is subsequently in default,
the
enforcement of such Mortgage Loan will not be materially adversely affected
by
the absence of the original Mortgage Note;
(rr) Each
Mortgage Loan constitutes a qualified mortgage under Section 860G(a)(3)(A)
of
the Code and Treasury Regulations Section 1.860G-2(a)(1);
(ss)
Except
as provided in Section 2.07, the Mortgage Note, the Mortgage, the Assignment
of
Mortgage and the other Mortgage Loan Documents set forth in Exhibit A-1
and
required to be delivered on the related Closing Date have been delivered
to the
Purchaser or its designee all in compliance with the specific requirements
of
the Provident-RWT Agreement. With respect to each Mortgage Loan, the Company
is
in possession of a complete Mortgage File and Servicing File except for
such
documents as have been delivered to the Purchaser or its designee;
(tt)
All
information supplied by, on behalf of, or concerning the Mortgagor is true,
accurate and complete and does not contain any statement that at the time
provided and as of the Closing Date is or will be inaccurate or misleading
in
any material respect;
(uu)
There
does not exist on the related Mortgage Property any hazardous substances,
hazardous wastes or solid wastes, as such terms are defined in the Comprehensive
Environmental Response Compensation and Liability Act, the Resource Conservation
and Recovery Act of 1976, or other federal, state or local environmental
legislation;
(vv) All
disclosure materials required by applicable law with respect to the making
of
fixed rate and adjustable rate mortgage loans have been received by the
borrower;
(ww) No
Mortgage Loan had a Loan-to-Value Ratio at the time of origination of more
than
95%;
(xx) None
of
the Mortgage Loans are subject to the Home Ownership and Equity Protection
Act
of 1994 or any comparable state law;
(yy) None
of
the proceeds of the Mortgage Loan were used to finance single-premium credit
insurance policies;
(zz) Any
principal advances made to the Mortgagor prior to the Closing Date have
been
consolidated with the outstanding principal amount secured by the Mortgage,
and
the secured principal amount, as consolidated, bears a single interest
rate and
single repayment term. The lien of the Mortgage securing the consolidated
principal amount is expressly insured as having first lien priority by
a title
insurance policy, an endorsement to the policy insuring the mortgagee’s
consolidated interest or by other title evidence acceptable to Xxxxxx Xxx
and
Xxxxxxx Mac. The consolidated principal amount does not exceed the original
principal amount of the Mortgage Loan;
(aaa) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
(bbb) No
Mortgage Loan is a Balloon Mortgage Loan;
(ccc) With
respect to each MERS Mortgage Loan, a MIN has been assigned by MERS and
such MIN
is accurately provided on the Mortgage Loan Schedule. The related assignment
of
Mortgage to MERS has been duly and properly recorded;
(ddd) With
respect to each MERS Mortgage Loan, the Company has not received any notice
of
liens or legal actions with respect to such Mortgage Loan and no such notices
have been electronically posted by MERS;
(eee) None
of
the Mortgaged
Properties are manufactured housing;
(fff) With
respect to each Mortgage Loan, the Company has fully and accurately furnished
complete information on the related borrower credit files to Equifax, Experian
and Trans Union Credit Information Company, in accordance with the Fair
Credit
Reporting Act and its implementing regulations;
(ggg) The
Company has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot Act of 2001
(collectively, the “Anti-Money Laundering Laws”); and the Company has
established an anti-money laundering compliance program as required by
the
Anti-Money Laundering Laws;
(hhh) Each
Mortgage Loan at the time it was made complied in all material respects
with
applicable local, state, and federal laws, including, but not limited to,
all
applicable predatory and abusive lending laws;
(iii) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable, and no
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable as such
terms
are defined in the current Standard & Poor’s LEVELS ® Glossary Revised,
Appendix E. No Mortgage Loan is in violation of any applicable federal,
state,
or local predatory or abusive lending law. Any breach of this representation
shall be deemed to materially and adversely affect the value of the Mortgage
Loan and shall require a repurchase of the affected Mortgage Loan;
(jjj) No
Mortgage Loan was originated on or after October 1, 2002 and prior to March
7,
2003, which is secured by property located in the State of Georgia. No
Mortgage
Loan was originated on or after March 7, 2003 which is a “high cost home loan”
as defined under the Georgia Fair Lending Act. Any breach of this representation
shall be deemed to materially and adversely affect the value of the Mortgage
Loan and shall require a repurchase of the affected Mortgage Loan;
(kkk) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Jersey Home
Ownership Act, which became effective November 27, 2003; and
(lll) There
were no
adverse selection procedures used in selecting the Mortgage Loan from among
the
residential mortgage loans which were available for inclusion in the Mortgage
Loans.
XVII.
|
With
respect to Mortgage Loans purchased under the Seller’s Warranties and
Servicing Agreement, dated as of May 1, 2007 by and between Redwood
Trust,
Inc. and Xxxxx Fargo Bank, N.A. (the "Redwood-Xxxxx Fargo
Agreement")
|
With
respect to each Mortgage Loan, RWT Holdings hereby makes the following
representations and warranties. Such representations and warranties speak
as of
the Closing Date with respect to the Mortgage Loans (as such capitalized
terms
are defined in the Pooling and Servicing Agreement), unless otherwise indicated.
Capitalized terms are as defined in this Schedule A or in the Redwood-Xxxxx
Fargo Agreement.
(a)
|
Mortgage
Loans as Described.
|
The
information set forth in the Mortgage Loan Schedules attached hereto as
Exhibit
A and Exhibit A-1 and the information contained on the respective Data
Files
delivered to the Purchaser are true and correct; provided that the Company
makes
no representation or warranty as to the accuracy of Unverified Information;
and
the
information provided to the rating agencies, including the loan level detail,
is
true and correct according to the rating agency requirements;
(b)
|
Payments
Current.
|
All
payments required to be made up to the Cut-off Date for the Mortgage Loan
under
the terms of the Mortgage Note have been made and credited. No payment
under any
Mortgage Loan has been thirty (30) days delinquent more than one (1) time
within
twelve (12) months prior to the Closing Date;
(c)
|
No
Outstanding Charges.
|
There
are
no defaults in complying with the terms of the Mortgages, and all taxes,
governmental assessments, insurance premiums, leasehold payments, water,
sewer
and municipal charges, which previously became due and owing have been
paid, or
an escrow of funds has been established in an amount sufficient to pay
for every
such item which remains unpaid and which has been assessed but is not yet
due
and payable. The Company has not advanced funds, or induced, or solicited
directly or indirectly, the payment of any amount required under the Mortgage
Loan, except for interest accruing from the date of the Mortgage Note or
date of
disbursement of the Mortgage Loan proceeds, whichever is later, to the
day which
precedes by one month the Due Date of the first installment of principal
and
interest;
(d)
|
Original
Terms Unmodified.
|
The
terms
of the Mortgage Note and Mortgage have not been impaired, waived, altered
or
modified in any respect, except by a written instrument which has been
recorded
or registered with the MERS System, if necessary, to protect the interests
of
the Purchaser and is retained by the Company in the Retained Mortgage File;
and
the related Mortgage Note which has been delivered to the Custodian. The
substance of any such waiver, alteration or modification has been approved
by
the issuer of any related PMI Policy and the title insurer, to the extent
required by the policy, and its terms are reflected on the related Mortgage
Loan
Schedule. No Mortgagor has been released, in whole or in part, except in
connection with an assumption agreement approved by the issuer of any related
PMI Policy and the title insurer, to the extent required by the policy,
and
which assumption agreement is part of the Custodial Mortgage File delivered
to
the Custodian and the terms of which are reflected in the related Mortgage
Loan
Schedule;
(e)
|
No
Defenses.
|
The
Mortgage Loan is not subject to any right of rescission, set-off, counterclaim
or defense, including without limitation the defense of usury, nor will
the
operation of any of the terms of the Mortgage Note or the Mortgage, or
the
exercise of any right thereunder, render either the Mortgage Note or the
Mortgage unenforceable, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense, including without limitation
the
defense of usury, and no such right of rescission, set-off, counterclaim
or
defense has been asserted with respect thereto;
(f)
|
No
Satisfaction of Mortgage.
|
The
Mortgage has not been satisfied, canceled, subordinated or rescinded, in
whole
or in part, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part, nor has any instrument been executed
that
would effect any such satisfaction, release, cancellation, subordination
or
rescission;
(g)
|
Validity
of Mortgage Documents.
|
The
Mortgage Note and the Mortgage and related documents are genuine, and each
is
the legal, valid and binding obligation of the maker thereof enforceable
in
accordance with its terms. All parties to the Mortgage Note and the Mortgage
had
legal capacity to enter into the Mortgage Loan and to execute and deliver
the
Mortgage Note and the Mortgage, and the Mortgage Note and the Mortgage
have been
duly and properly executed by such parties. The Company has reviewed all
documents constituting the Retained Mortgage File and Custodial Mortgage
File
and has made such inquiries as it deems necessary to make and confirm the
accuracy of the representations set forth herein;
With
respect to each Cooperative Loan, the Mortgage Note, the Mortgage, the
Pledge
Agreement, and related documents are genuine, and each is the legal, valid
and
binding obligation of the maker thereof enforceable in accordance with
its
terms. All parties to the Mortgage Note, the Mortgage, the Pledge Agreement,
the
Proprietary Lease, the Stock Power, Recognition Agreement and the Assignment
of
Proprietary Lease had legal capacity to enter into the Mortgage Loan and
to
execute and deliver such documents, and such documents have been duly and
properly executed by such parties;
(h)
|
No
Fraud.
|
No
error,
omission, misrepresentation, negligence, fraud or similar occurrence with
respect to a Mortgage Loan has taken place on the part of the Company,
or the
Mortgagor (except with respect to the accuracy of Unverified Information),
or to
the best of the Company’s knowledge, any appraiser, any builder, or any
developer, or any other party involved in the origination of the Mortgage
Loan
or in the application of any insurance in relation to such Mortgage
Loan;
(i)
|
Compliance
with Applicable Laws.
|
Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures,
consumer
credit protection and privacy, equal credit opportunity, disclosure or
predatory
and abusive lending laws applicable to the Mortgage Loan have been complied
with. All inspections, licenses and certificates required to be made or
issued
with respect to all occupied portions of the Mortgaged Property and, with
respect to the use and occupancy of the same, including, but not limited
to,
certificates of occupancy and fire underwriting certificates, have been
made or
obtained from the appropriate authorities;
(j)
|
Location
and Type of Mortgaged Property.
|
The
Mortgaged Property is located in the state identified in the related Mortgage
Loan Schedule and consists of a contiguous parcel of real property with
a
detached single family residence erected thereon, or a two- to four-family
dwelling, or an individual condominium unit in a condominium project, or
a
Cooperative Apartment, or an individual unit in a planned unit development
or a
townhouse, provided, however, that any condominium project or planned unit
development shall conform to the applicable Xxxxxx Xxx or Xxxxxxx Mac
requirements, the Company Underwriting Guidelines (other than the exception
identified for Exception Mortgage Loans) or the Third-Party Underwriting
Guidelines, as applicable, regarding such dwellings, and no residence or
dwelling is a mobile home or manufactured dwelling. As of the respective
appraisal date for each Mortgaged Property, any Mortgaged Property being
used
for commercial purposes conforms to the Company Underwriting Guidelines
(other
than the exception identified for Exception Mortgage Loans) or the Third-Party
Underwriting Guidelines, as applicable and, to the best of the Company’s
knowledge, since the date of such appraisal, no portion of the Mortgaged
Property was being used for commercial purposes outside of the Company
Underwriting Guidelines (other than the exception identified for Exception
Mortgage Loans) or the Third-Party Underwriting Guidelines, as
applicable;
(k)
|
Valid
First Lien.
|
The
Mortgage is a valid, subsisting and enforceable first lien on the Mortgaged
Property, including all buildings on the Mortgaged Property and all
installations and mechanical, electrical, plumbing, heating and air conditioning
systems located in or annexed to such buildings, and all additions, alterations
and replacements made at any time with respect to the foregoing. The lien
of the
Mortgage is subject only to:
(1)
|
the
lien of current real property taxes and assessments not yet due
and
payable;
|
(2)
|
covenants,
conditions and restrictions, rights of way, easements and other
matters of
the public record as of the date of recording acceptable to mortgage
lending institutions generally and specifically referred to in
the
lender's title insurance policy delivered to the originator of
the
Mortgage Loan and (i) referred to or otherwise considered in
the appraisal
made for the originator of the Mortgage Loan and (ii) which do
not
adversely affect the Appraised Value of the Mortgaged Property
set forth
in such appraisal; and
|
(3)
|
other
matters to which like properties are commonly subject which do
not
materially interfere with the benefits of the security intended
to be
provided by the mortgage or the use, enjoyment, value or marketability
of
the related Mortgaged Property.
|
Any
security agreement, chattel mortgage or equivalent document related to
and
delivered in connection with the Mortgage Loan establishes and creates
a valid,
subsisting and enforceable first lien and first priority security interest
on
the property described therein and the Company has full right to sell and
assign
the same to the Purchaser;
With
respect to each Cooperative Loan, each Pledge Agreement creates a valid,
enforceable and subsisting first security interest in the Cooperative Shares
and
Proprietary Lease, subject only to (i) the lien of the related Cooperative
for
unpaid assessments representing the Mortgagor’s pro rata share of the
Cooperative’s payments for its blanket mortgage, current and future real
property taxes, insurance premiums, maintenance fees and other assessments
to
which like collateral is commonly subject and (ii) other matters to which
like
collateral is commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Pledge Agreement;
provided, however, that the appurtenant Proprietary Lease may be subordinated
or
otherwise subject to the lien of any mortgage on the Project;
(l)
|
Full
Disbursement of Proceeds.
|
The
proceeds of the Mortgage Loan have been fully disbursed, except for escrows
established or created due to seasonal weather conditions, and there is
no
requirement for future advances thereunder. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any refund of
any
amounts paid or due under the Mortgage Note or Mortgage;
(m)
|
Consolidation
of Future Advances.
|
Any
future advances made prior to the Cut-off Date, have been consolidated
with the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment
term
reflected on the related Mortgage Loan Schedule. The lien of the Mortgage
securing the consolidated principal amount is expressly insured as having
first
lien priority by a title insurance policy, an endorsement to the policy
insuring
the mortgagee’s consolidated interest or by other title evidence acceptable to
Xxxxxx Xxx or Xxxxxxx Mac; the consolidated principal amount does not exceed
the
original principal amount of the Mortgage Loan; the Company shall not make
future advances after the Cut-off Date;
(n)
|
Ownership.
|
The
Company is the sole owner of record and holder of the Mortgage Loan and
the
related Mortgage Note and the Mortgage are not assigned or pledged, and
the
Company has good and marketable title thereto and has full right and authority
to transfer and sell the Mortgage Loan to the Purchaser. The Company is
transferring the Mortgage Loan free and clear of any and all encumbrances,
liens, pledges, equities, participation interests, claims, charges or security
interests of any nature encumbering such Mortgage Loan;
(o)
|
Origination/Doing
Business.
|
The
Mortgage Loan was originated by a savings and loan association, a savings
bank,
a commercial bank, a credit union, an insurance company, or similar institution
that is supervised and examined by a federal or state authority or by a
mortgagee approved by the Secretary of Housing and Urban Development pursuant
to
Sections 203 and 211 of the National Housing Act. All parties which have
had any
interest in the Mortgage Loan, whether as mortgagee, assignee, pledgee
or
otherwise, are (or, during the period in which they held and disposed of
such
interest, were) (1) in compliance with any and all applicable licensing
requirements of the laws of the state wherein the Mortgaged Property is
located,
and (2) organized under the laws of such state, or (3) qualified to do
business
in such state, or (4) federal savings and loan associations or national
banks
having principal offices in such state, or (5) not doing business in such
state;
(p)
|
LTV,
PMI Policy.
|
No
Mortgage Loan has an LTV greater than 95%. Except as set forth on the related
Data File, each Mortgage Loan with an LTV greater than 80% at the time
of
origination, a portion of the unpaid principal balance of the Mortgage
Loan is
and will be insured as to payment defaults by a PMI Policy. If the Mortgage
Loan
is insured by a PMI Policy which is not an LPMI Policy, the coverage will
remain
in place until (i) the LTV decreases to 78% or (ii) the PMI Policy is otherwise
terminated pursuant to the Homeowners Protection Act of 1998, 12 USC §4901, et
seq. All provisions of such PMI Policy or LPMI Policy have been and are
being
complied with, such policy is in full force and effect, and all premiums
due
thereunder have been paid. The Qualified Insurer has a claims paying ability
acceptable to Xxxxxx Mae or Xxxxxxx Mac. Any Mortgage Loan subject to a
PMI
Policy or LPMI Policy obligates the Mortgagor or the Company to maintain
the PMI
Policy or LPMI Policy, as applicable, and to pay all premiums and charges
in
connection therewith. The Mortgage Interest Rate for the Mortgage Loan
as set
forth on the related Mortgage Loan Schedule is net of any such insurance
premium;
(q)
|
Title
Insurance.
|
The
Mortgage Loan is covered by an ALTA lender's title insurance policy (or
in the
case of any Mortgage Loan secured by a Mortgaged Property located in a
jurisdiction where such policies are generally not available, an opinion
of
counsel of the type customarily rendered in such jurisdiction in lieu of
title
insurance) or other generally acceptable form of policy of insurance acceptable
to Xxxxxx Xxx or Xxxxxxx Mac, issued by a title insurer acceptable to Xxxxxx
Mae
or Xxxxxxx Mac and qualified to do business in the jurisdiction where the
Mortgaged Property is located, insuring the Company, its successors and
assigns,
as to the first priority lien of the Mortgage in the original principal
amount
of the Mortgage Loan, subject only to the exceptions contained in clauses
(1),
(2) and (3) of subclause (k) of this Section 3.02, and against any loss
by
reason of the invalidity or unenforceability of the lien resulting from
the
provisions of the Mortgage providing for adjustment to the Mortgage Interest
Rate and Monthly Payment. The Company is the sole insured of such lender's
title
insurance policy, and such lender's title insurance policy is in full force
and
effect and will be in force and effect upon the consummation of the transactions
contemplated by the Redwood-Xxxxx Fargo Agreement. No claims have been
made
under such lender's title insurance policy, and no prior holder of the
Mortgage,
including the Company, has done, by act or omission, anything which would
impair
the coverage of such lender's title
insurance
policy;
(r)
|
No
Defaults.
|
There
is
no default, breach, violation or event of acceleration existing under the
Mortgage or the Mortgage Note and no event which, with the passage of time
or
with notice and the expiration of any grace or cure period, would constitute
a
default, breach, violation or event of acceleration, and neither the Company
nor
its predecessors have waived any default, breach, violation or event of
acceleration;
(s)
|
No
Mechanics' Liens.
|
There
are
no mechanics' or similar liens or claims which have been filed for work,
labor
or material (and no rights are outstanding that under the law could give
rise to
such liens) affecting the related Mortgaged Property which are or may be
liens
prior to, or equal or coordinate with, the lien of the related Mortgage
which
are not insured against by the title insurance policy referenced in subclause
(q) of Section 3.02 of the Redwood-Xxxxx Fargo Agreement;
(t)
|
Location
of Improvements; No Encroachments.
|
Except
as
insured against by the title insurance policy referenced in subclause (q)
of
Section 3.02 of the Redwood-Xxxxx Fargo Agreement, all improvements which
were
considered in determining the Appraised Value of the Mortgaged Property
lay
wholly within the boundaries and building restriction lines of the Mortgaged
Property and no improvements on adjoining properties encroach upon the
Mortgaged
Property. No improvement located on or being part of the Mortgaged Property
is
in violation of any applicable zoning law or regulation;
(u)
|
Payment
Terms.
|
Except
with respect to the Interest Only Mortgage Loans, principal payments commenced
no more than sixty (60) days after the funds were disbursed to the Mortgagor
in
connection with the Mortgage Loan. Except with respect to the Interest
Only
Mortgage Loans, each Mortgage Loan is payable in equal monthly installments
of
principal and interest, with interest calculated and payable in arrears,
sufficient to amortize the Mortgage Loan fully by the stated maturity date
set
forth in the Mortgage Note over an original term to maturity of not more
than
thirty (30) years. As to each Adjustable Rate Mortgage Loan on each applicable
Adjustment Date, the Mortgage Interest Rate will be adjusted to equal the
sum of
the Index plus the applicable Gross Margin, rounded up or down to the nearest
multiple of 0.125% indicated by the Mortgage Note; provided that the Mortgage
Interest Rate will not increase or decrease by more than the Periodic Interest
Rate Cap on any Adjustment Date, and will in no event exceed the Maximum
Mortgage Interest Rate or be lower than the Minimum Mortgage Interest Rate
listed on the Mortgage Note for such Mortgage Loan. As to each Adjustable
Rate
Mortgage Loan that is not an Interest Only Mortgage Loan, each Mortgage
Note
requires a monthly payment which is sufficient, during the period prior
to the
first adjustment to the Mortgage Interest Rate, to fully amortize the
outstanding principal balance as of the first day of such period over the
then
remaining term of such Mortgage Note and to pay interest at the related
Mortgage
Interest Rate. With respect to each Interest Only Mortgage Loan, the
interest-only period shall not exceed fifteen (15) years (or such other
period
specified on the related Data File) and following the expiration of such
interest-only period, the remaining Monthly Payments shall be sufficient
to
fully amortize the original principal balance over the remaining term of
the
Mortgage Loan and to pay interest at the related Mortgage Interest Rate.
As to
each Adjustable Rate Mortgage Loan, if the related Mortgage Interest Rate
changes on an Adjustment Date or, with respect to an Interest Only Mortgage
Loan, on an Adjustment Date following the related interest-only period,
the then
outstanding principal balance will be reamortized over the remaining life
of
such Mortgage Loan. No Adjustable Rate Mortgage Loan contains terms or
provisions which would result in negative amortization;
(v)
|
Customary
Provisions.
|
The
Mortgage and related Mortgage Note contain customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate
for the
realization against the Mortgaged Property of the benefits of the security
provided thereby, including, (i) in the case of a Mortgage designated as
a deed
of trust, by trustee's sale, and (ii) otherwise by judicial foreclosure.
There
is no homestead or other exemption available to a Mortgagor which would
interfere with the right to sell the Mortgaged Property at a trustee's
sale or
the right to foreclose the Mortgage;
(w)
|
Occupancy
of the Mortgaged Property.
|
As
of the
date of origination, the Mortgaged Property was lawfully occupied under
applicable law;
(x)
|
No
Additional Collateral.
|
Except
in
the case of a Pledged Asset Mortgage Loan and as indicated on the related
Data
File, the Mortgage Note is not and has not been secured by any collateral,
pledged account or other security except the lien of the corresponding
Mortgage
and the security interest of any applicable security agreement or chattel
mortgage referred to in subclause (k) of Section 3.02 of the Redwood-Xxxxx
Fargo
Agreement;
(y)
|
Deeds
of Trust.
|
In
the
event the Mortgage constitutes a deed of trust, a trustee, duly qualified
under
applicable law to serve as such, has been properly designated and currently
so
serves and is named in the Mortgage, and no fees or expenses are or will
become
payable by the mortgagee to the trustee under the deed of trust, except
in
connection with a trustee's sale after default by the Mortgagor;
(z)
|
Acceptable
Investment.
|
The
Company has no knowledge of any circumstances or conditions with respect
to the
Mortgage Loan, the Mortgaged Property, the Mortgagor or the Mortgagor's
credit
standing that can reasonably be expected to cause private institutional
investors to regard the Mortgage Loan as an unacceptable investment, cause
the
Mortgage Loan to become delinquent, or adversely affect the value or
marketability of the Mortgage Loan;
(aa)
|
Transfer
of Mortgage Loans.
|
If
the
Mortgage Loan is not a MERS Mortgage Loan, the Assignment of Mortgage,
upon the
insertion of the name of the assignee and recording information, is in
recordable form and is acceptable for recording under the laws of the
jurisdiction in which the Mortgaged Property is located;
(bb)
|
Mortgaged
Property Undamaged.
|
The
Mortgaged Property is undamaged by waste, fire, earthquake or earth
movement,
windstorm, flood, tornado or other casualty so as to affect adversely the
value
of the Mortgaged Property as security for the Mortgage Loan or the use
for which
the premises were intended;
(cc)
|
Collection
Practices; Escrow Deposits.
|
The
origination, servicing and collection practices used with respect to the
Mortgage Loan have been in accordance with Accepted Servicing Practices,
and
have been in all material respects legal and proper. With respect to escrow
deposits and Escrow Payments, all such payments are in the possession of
the
Company and there exist no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made. All Escrow
Payments have been collected in full compliance with state and federal
law. No
escrow deposits or Escrow Payments or other charges or payments due the
Company
have been capitalized under the Mortgage Note;
(dd)
|
No
Condemnation.
|
There
is
no proceeding pending or to the best of the Company’s knowledge threatened for
the total or partial condemnation of the related Mortgaged
Property;
(ee)
|
The
Appraisal.
|
The
Servicing File for each Mortgage Loan includes an appraisal of the related
Mortgaged Property. As to each Time$aver® Mortgage Loan, the appraisal may be
from the original of the existing Company-serviced loan, which was refinanced
via such Time$aver® Mortgage Loan. The appraisal was conducted by an appraiser
who had no interest, direct or indirect, in the Mortgaged Property or in
any
loan made on the security thereof; and whose compensation is not affected
by the
approval or disapproval of the Mortgage Loan, and the appraisal and the
appraiser both satisfy the applicable requirements of Title XI of the Financial
Institution Reform, Recovery, and Enforcement Act of 1989 and the regulations
promulgated thereunder, all as in effect on the date the Mortgage Loan
was
originated;
(ff)
|
Insurance.
|
The
Mortgaged Property securing each Mortgage Loan is insured by an insurer
acceptable to Xxxxxx Mae or Xxxxxxx Mac against loss by fire and such hazards
as
are covered under a standard extended coverage endorsement and such other
hazards as are customary in the area where the Mortgaged Property is located
pursuant to insurance policies conforming to the requirements of Section
4.10,
in an amount which is at least equal to the lesser of (i) 100% of the insurable
value, on a replacement cost basis, of the improvements on the related
Mortgaged
Property and (ii) the greater of (a) the outstanding principal balance
of the
Mortgage Loan or (b) an amount such that the proceeds of such insurance
shall be
sufficient to prevent the application to the Mortgagor or the loss payee
of any
coinsurance clause under the policy. If the Mortgaged Property is a condominium
unit, it is included under the coverage afforded by a blanket policy for
the
project. If the improvements on the Mortgaged Property are in an area identified
in the Federal Register by the Federal Emergency Management Agency as having
special flood hazards, a flood insurance policy meeting the requirements
of the
current guidelines of the Federal Insurance Administration is in effect
with a
generally acceptable insurance carrier, in an amount representing coverage
not
less than the least of (A) the outstanding principal balance of the Mortgage
Loan, (B) the full insurable value and (C) the maximum amount of insurance
which
was available under the Flood Disaster Protection Act of 1973, as amended.
All
individual insurance policies contain a standard mortgagee clause naming
the
Company and its successors and assigns as mortgagee, and all premiums thereon
have been paid. The Mortgage obligates the Mortgagor thereunder to maintain
a
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 to
obtain
and maintain such insurance at such Mortgagor's cost and expense, and to
seek
reimbursement therefor from the Mortgagor. The hazard insurance policy
is the
valid and 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 Purchaser
upon
the consummation of the transactions contemplated by the Redwood-Xxxxx
Fargo
Agreement. The Company has not acted or failed to act so as to impair the
coverage of any such insurance policy or the validity, binding effect and
enforceability thereof;
(gg)
|
Servicemembers
Civil Relief Act.
|
The
Mortgagor has not notified the Company, and the Company has no knowledge
of any
relief requested or allowed to the Mortgagor under the Servicemembers Civil
Relief Act, as amended;
(hh)
|
No
Balloon Payments, Graduated Payments or Contingent
Interests.
|
The
Mortgage Loan is not a graduated payment mortgage loan and the Mortgage
Loan
does not have a shared appreciation or other contingent interest feature.
No
Mortgage Loan has a balloon payment feature;
(ii)
|
No
Construction Loans.
|
No
Mortgage Loan was made in connection with (i) the construction or rehabilitation
of a Mortgage Property or (ii) facilitating the trade-in or exchange of
a
Mortgaged Property other than a construction-to-permanent loan which has
converted to a permanent Mortgage Loan;
(jj)
|
Underwriting.
|
(i)
|
Each
Company Mortgage Loan was underwritten in accordance with the
Company
Underwriting Guidelines;
|
(ii)
|
Each
Third-Party Mortgage Loan was underwritten in accordance with
the
Third-Party Underwriting
Guidelines;
|
(iii)
|
Each
Exception Mortgage Loan was underwritten in accordance with the
Company
Underwriting Guidelines; and
|
(iv)
|
Each
Mortgage Note and Mortgage are on forms acceptable to Xxxxxxx
Mac or
Xxxxxx Mae;
|
(kk)
|
No
Bankruptcy.
|
No
Mortgagor was a debtor in any state or federal bankruptcy or insolvency
proceeding at the time the Mortgage Loan was originated and as of the Closing
Date, the Company has not received notice that any Mortgagor is a debtor
under
any state or federal bankruptcy or insolvency proceeding;
(ll)
|
The
Mortgagor.
|
The
Mortgagor is one or more natural Persons and/or an Illinois land trust
or a
“living trust” and such “living trust” is in compliance with the Company
Underwriting Guidelines (other than the exception identified for Exception
Mortgage Loans) or the Third-Party Underwriting Guidelines, as
applicable;
(mm)
|
Interest
Calculation.
|
Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
(nn)
|
Environmental
Status.
|
There
is
no pending action or proceeding directly involving the Mortgaged Property
of
which the Company is aware in which compliance with any environmental law,
rule
or regulation is an issue; and to the best of the Company’s knowledge, nothing
further remains to be done to satisfy in full all requirements of each
such law,
rule or regulation constituting a prerequisite to the use and enjoyment
of the
Mortgaged Property;
(oo)
|
No
High Cost Loans.
|
No
Mortgage Loan is a High Cost Loan or Covered Loan;
(pp)
|
Anti-Money
Laundering Laws.
|
The
Company has complied with all applicable anti-money laundering laws and
regulations, including without limitation the USA Patriot ACT of 2001
(collectively, the “Anti-Money Laundering Laws”); the Company has established an
anti-money laundering compliance program as required by the Anti-Money
Laundering Laws, has conducted the requisite due diligence in connection
with
the origination of each Mortgage Loan for purposes of the Anti-Money Laundering
Laws, including with respect to the identity of the applicable Mortgagor
and the
origin of assets used by the said Mortgagor to purchase the related Mortgaged
Property, and maintains sufficient information to identify the applicable
Mortgagor for purposes of the Anti-Money Laundering Laws;
(qq)
|
Single
Premium Credit Life Insurance.
|
No
Mortgagor was required to purchase any single premium credit insurance
policy
(e.g. life, disability, accident, unemployment or health insurance product)
or
debt cancellation agreement as a condition of obtaining the extension of
credit.
No Mortgagor obtained a prepaid single premium credit insurance policy
(e.g.
life, disability, accident, unemployment or health insurance product) as
part of
the origination of the Mortgage Loan. No proceeds from any Mortgage Loan
were
used to purchase single premium credit insurance policies or debt cancellation
agreements as part of the origination of, or as a condition to closing,
such
Mortgage Loan;
(rr)
|
Buydown
Mortgage Loans.
|
With
respect to each Mortgage Loan that is a Buydown Mortgage Loan:
(i)
|
On
or before the date of origination of such Mortgage Loan, the
Company and
the Mortgagor, or the Company, the Mortgagor and the seller of
the
Mortgaged Property or a third party entered into a Buydown Agreement.
The
Buydown Agreement provides that the seller of the Mortgaged Property
(or
third party) shall deliver to the Company temporary Buydown Funds
in an
amount equal to the aggregate undiscounted amount of payments
that, when
added to the amount the Mortgagor on such Mortgage Loan is obligated
to
pay on each Due Date in accordance with the terms of the Buydown
Agreement, is equal to the full scheduled Monthly Payment due
on such
Mortgage Loan. The temporary Buydown Funds enable the Mortgagor
to qualify
for the Buydown Mortgage Loan. The effective interest rate of
a Buydown
Mortgage Loan if less than the interest rate set forth in the
related
Mortgage Note will increase within the Buydown Period as provided
in the
related Buydown Agreement so that the effective interest rate
will be
equal to the interest rate as set forth in the related Mortgage
Note. The
Buydown Mortgage Loan satisfies the requirements of the Company
Underwriting Guidelines (other than the exception identified
for Exception
Mortgage Loans) or the Third-Party Underwriting Guidelines, as
applicable;
|
(ii)
|
The
Mortgage and Mortgage Note reflect the permanent payment terms
rather than
the payment terms of the Buydown Agreement. The Buydown Agreement
provides
for the payment by the Mortgagor of the full amount of the Monthly
Payment
on any Due Date that the Buydown Funds are available. The Buydown
Funds
were not used to reduce the original principal balance of the
Mortgage
Loan or to increase the Appraised Value of the Mortgage Property
when
calculating the Loan-to-Value Ratios for purposes of the Agreement
and, if
the Buydown Funds were provided by the Company and if required
under the
Company Underwriting Guidelines (other than the exception identified
for
Exception Mortgage Loans) or the Third-Party Underwriting Guidelines,
as
applicable, the terms of the Buydown Agreement were disclosed
to the
appraiser of the Mortgaged
Property;
|
(iii)
|
The
Buydown Funds may not be refunded to the Mortgagor unless the
Mortgagor
makes a principal payment for the outstanding balance of the
Mortgage
Loan;
|
(iv) |
As
of the date of origination of the Mortgage Loan, the provisions
of the
related
Buydown Agreement complied with the requirements of the Company
Underwriting Guidelines (other than the exception identified
for Exception
Mortgage Loans) or the Third-Party Underwriting Guidelines, as
applicable,
regarding buydown agreements;
|
(ss)
|
Cooperative
Loans.
|
With
respect to each Cooperative Loan:
(i) |
The
Cooperative Shares are held by a Person as a tenant-stockholder
in a
Cooperative.
Each original UCC financing statement, continuation statement
or other
governmental filing or recordation necessary to create or preserve
the
perfection and priority of the first lien and security interest
in the
Cooperative Loan and Proprietary Lease has been timely and properly
made.
Any security agreement, chattel mortgage or equivalent document
related to
the Cooperative Loan and delivered to Purchaser or its designee
establishes in Purchaser a valid and subsisting perfected first
lien on
and security interest in the Mortgaged Property described therein,
and
Purchaser has full right to sell and assign the same. The Proprietary
Lease term expires no less than five years after the Mortgage
Loan term or
such other term acceptable to Xxxxxx Xxx, Xxxxxxx Mac, the Company
Underwriting Guidelines (other than the exception identified
for Exception
Mortgage Loans) or the Third-Party Underwriting Guidelines, as
applicable;
|
(ii)
|
A
Cooperative Lien Search has been made by a company competent
to make the
same which company is acceptable to Xxxxxx Mae or Xxxxxxx Mac
and
qualified to do business in the jurisdiction where the Cooperative
is
located;
|
(iii)
|
(a)
The term of the related Proprietary Lease is not less than the
terms of
the Cooperative Loan; (b) there is no provision in any Proprietary
Lease
which requires the Mortgagor to offer for sale the Cooperative
Shares
owned by such Mortgagor first to the Cooperative; (c) there is
no
prohibition in any Proprietary Lease against pledging the Cooperative
Shares or assigning the Proprietary Lease; (d) the Cooperative
has been
created and exists in full compliance with the requirements for
residential cooperatives in the jurisdiction in which the Project
is
located and qualifies as a cooperative housing corporation under
Section
216 of the Code; (e) the Recognition Agreement is on a form published
by
Aztech Document Services, Inc. or includes similar provisions;
and (f) the
Cooperative has good and marketable title to the Project, and
owns the
Project either in fee simple or under a leasehold that complies
with the
requirements of the Xxxxxx Mae guidelines, Xxxxxxx Mac guidelines,
the
Company Underwriting Guidelines (other than the exception identified
for
Exception Mortgage Loans) or the Third-Party Underwriting Guidelines,
as
applicable; such title is free and clear of any adverse liens
or
encumbrances, except the lien of any blanket
mortgage;
|
(iv)
|
The
Company has the right under the terms of the Mortgage Note, Pledge
Agreement and Recognition Agreement to pay any maintenance charges
or
assessments owed by the Mortgagor;
and
|
(v)
|
Each
Stock Power (i) has all signatures guaranteed or (ii) if all
signatures
are not guaranteed, then such Cooperative Shares will be transferred
by
the stock transfer agent of the Cooperative if the Company undertakes
to
convert the ownership of the collateral securing the related
Cooperative
Loan;
|
(tt)
|
Delivery
of Custodial Mortgage Files.
|
The
Mortgage Note, Assignment of Mortgage and any other documents required
to be
delivered by the Company have been delivered to the Custodian in accordance
with
the Redwood-Xxxxx Fargo Agreement. The Company is in possession of a complete,
true and accurate Retained Mortgage File in compliance with Exhibit C,
except
for such documents the originals of which have been delivered to the Custodian
or for such documents where the originals of which have been sent for
recordation;
(uu)
|
Credit
Reporting.
|
With
respect to each Mortgage Loan, the Company has furnished complete information
on
the related borrower credit files to Equifax, Experian and Trans Union
Credit
Information Company, in accordance with the Fair Credit Reporting Act and
its
implementing regulations;
(vv)
|
Contents
of Retained Mortgage File.
|
The
Retained Mortgage File contains the Mortgage Loan Documents listed as items
6
through 12 of Exhibit C attached to the Redwood-Xxxxx Fargo Agreement,
except
for such documents where the originals of which have been sent for
recordation;
(ww)
|
Pledged
Asset Mortgage Loan.
|
With
respect to a Pledged Asset Mortgage Loan:
(i)
|
The
Pledge Holder has a rating of at least “AA” (or the equivalent) or better
from at least two Rating Agencies and the Pledge Holder is obligated
to
give the beneficiary of each Letter of Credit at least sixty
(60) days
notice of any non-renewal of any Letter of
Credit;
|
(ii)
|
With
respect to each Pledged Asset Mortgage Loan, the Company is the
named
beneficiary and no Person has drawn any funds against such Letter
of
Credit;
|
(iii)
|
Each
Letter of Credit is for an amount at least equal to an LTV of
20% of the
lower of the purchase price or the Appraised Value of the related
Mortgaged Property;
|
(iv)
|
As
of the Closing Date, the Company has complied with all the requirements
of
any Letter of Credit, and each Letter of Credit is a valid and
enforceable
obligation of the Pledge Holder;
|
(v)
|
The
Company has the right to draw on each Letter of Credit if the
related
Pledged Asset Mortgage Loan becomes ninety (90) days or more
delinquent
and to apply such proceeds as a partial prepayment
thereon;
|
(vi)
|
The
Company has not received notice of any non-renewal of any Letter
of
Credit;
|
(vii)
|
Upon
a default by the Pledge Holder, the Company will have a perfected
first
priority security interest in the assets pledged to secure the
Letter of
Credit and has the right to obtain possession thereof and the
right to
liquidate such assets and apply the proceeds thereof to prepay
the related
Pledged Asset Mortgage Loan; and
|
(viii)
|
The
Letter of Credit is required to be in effect (either for its
original term
or through renewal) until such time as all amounts owed under
the related
Pledged Asset Mortgage Loan by the related Mortgagor are less
than 80% of
the lesser of the Purchase Price or the Appraised Value of the
related
Mortgaged Property;
|
(xx)
|
Indiana.
|
There
is
no Mortgage Loan that was originated on or after January 1, 2005, which
is
a
“high cost home loan” as defined under the Indiana Home Loan Practices Act
(I.C.
24-9); and
(yy)
|
Leasehold
Estate.
|
With
respect to each Mortgage Loan secured in whole or in part by the interest
of
the
Mortgagor as a lessee under a ground lease of the related Mortgaged Property
(a
“Ground Lease”) and not by a fee interest in such Mortgaged
Property:
(i)
|
The
Mortgagor is the owner of a valid and subsisting interest as
tenant under
the Ground Lease;
|
(ii)
|
The
Ground Lease is in full force and
effect;
|
(iii)
|
The
Mortgagor is not in default under any provision of the
lease;
|
(iv)
|
The
lessor under the Ground Lease is not in default under any of
the terms or
provisions thereof on the part of the lessor to be observed or
performed;
|
(v)
|
The
term of the Ground Lease exceeds the maturity date of the related
Mortgage
Loan by at least five (5) years;
|
(vi)
|
The
Mortgagee under the Mortgage Loan is given at least sixty (60)
days’
notice of any default and an opportunity to cure any defaults
under the
Ground Lease or to take over the Mortgagor’s rights under the Ground
Lease;
|
(vii)
|
The
Ground Lease does not contain any default provisions that could
result in
forfeiture or termination of the Ground Lease except for non-payment
of
the Ground Lease or a court order;
|
(viii)
|
The
Ground Lease provides that the leasehold can be transferred,
mortgaged and
sublet an unlimited number of times either without restriction
or on
payment of a reasonable fee and delivery of reasonable documentation
to
the lessor;
|
(ix)
|
The
Ground Lease or a memorandum thereof has been recorded and by
its terms
permits the leasehold estate to be mortgaged;
and
|
(x)
|
The
execution, delivery and performance of the Mortgage do not require
consent
(other than those consents which have been obtained and are in
full force
and effect) under, and will not contravene any provision of or
cause a
default under, the Ground Lease.
|
(zz)
|
Prepayment
Penalty.
|
No
Mortgage Loan contains prepayment penalties that extend beyond five years
after
the date of origination;
(aaa)
|
Qualified
Mortgage Loan.
|
Each
Mortgage Loan would be a “qualified mortgage” within the meaning of Section
860G(a)(3)(A) of the Code and Treasury Regulations Section 1.860G-2(a)(1)
if
transferred to a REMIC on its startup date in exchange for the regular
or
residual interests of the REMIC; and
(bbb)
|
No
Adverse Selection.
|
There
were no adverse selection procedures used in selecting the Mortgage
Loan
from among the residential mortgage loans which were available
for
inclusion in the Mortgage Loans.
|