Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date: (i) The Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement; (ii) The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller; (iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof; (iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and (v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement. (b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that: (i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given; (ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid; (iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement; (iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission; (v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee; (vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement; (vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy; (viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan. (ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended; (x) 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; (xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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; (xii) Each Transferred 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; (xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period); (xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan; (xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings; (xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan; (xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 11 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Adjustable Rate Mortgage Loan Trust Series 2006-7), Mortgage Loan Sale and Assignment Agreement (Structured Adjustable Rate Mortgage Loan Trust Series 2007-2), Mortgage Loan Sale and Assignment Agreement (Structured Adjustable Rate Mortgage Loan Trust Series 2006-8)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement;
(ii) The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have has been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption This Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of each the Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a the Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such the Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such the Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 5 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (GreenPoint Mortgage Funding Trust 2006-Ar5), Mortgage Loan Sale and Assignment Agreement (GreenPoint Mortgage Funding Trust 2006-Ar6), Mortgage Loan Sale and Assignment Agreement (GreenPoint Mortgage Funding Trust 2006-Ar4)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement;
(ii) The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 5 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Adjustable Rate Mortgage Loan Trust Series 2006-6), Mortgage Loan Sale and Assignment Agreement (Structured Adjustable Rate Mortgage Loan Trust Series 2006-5), Mortgage Loan Sale and Assignment Agreement (Structured Adjustable Rate Mortgage Loan Trust Series 2006-3)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing DatePurchaser that:
(i) The 4.1.1 the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence of the State of Delaware and has full the corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement the transactions contemplated by the Transaction Documents and is duly qualified to do business as a foreign corporation and is in good standing in the Assignment and Assumption AgreementState of Oregon;
(ii) The execution 4.1.2 the execution, delivery and delivery by performance of the Seller of this Agreement and the Assignment and Assumption Agreement Transaction Documents have been duly authorized authorised by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance 4.1.3 each consent required by the Seller of this Agreement and to authorise, or required by it in connection with the Assignment and Assumption Agreement and the consummation execution, delivery, performance, legality, validity or enforceability of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as Transaction Documents has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement obtained and the Assignment and Assumption Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 there is no default in full force and effect and inure to the benefit observance or performance of any of the Depositor upon conditions and restrictions (if any) imposed on or in connection therewith;
4.1.4 the consummation entry by the Seller into, and performance by the Seller of the transactions contemplated by, the Transaction Documents do not and will not conflict with: (1) any law or regulation or any official or judicial order applicable to the Seller; (ii) the constitutional documents of the Seller; or (iii) any material agreement or document to which the Seller is a party or by which the Seller or any of its properties is bound or require any consent, approval or authorization of, the giving of notice to or registration with or taking any other action under any applicable law or regulation in respect of any governmental authority with jurisdiction, except as otherwise set forth in this Agreement;
(iv) Each Mortgage has not been satisfied4.1.5 no litigation or other proceeding before any court, cancelled, subordinated administrative agency 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;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage government body is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 partypending or, to sell and assign each Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledgeknowledge threatened against the Seller, no foreclosure action is being threatened the outcome of which could materially adversely affect the validity of the Transaction Documents or commenced with respect the rights, benefits or interest of the Purchaser conveyed hereunder;
4.1.6 the Seller holds good title to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total Aircraft, free and clear of all Encumbrances other than those created or partial condemnation granted by or through Purchaser, and upon Delivery, Seller shall convey to Purchaser, its successors and assigns, good title to the Aircraft, free and clear of any Mortgaged Property (orand all Encumbrances other than those created or granted by or through Purchaser;
4.1.7 the Seller holds all licenses, in certificates, permits and franchises from the case FAA and all other appropriate agencies of any Cooperative Loan, the related cooperative unit) United States of America and/or other governmental authorities or political subdivisions thereof having jurisdiction necessary to authorize Seller to perform its obligations under the Transaction Documents; and each such property certificate, permit and franchise is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) There are no mechanics’ or similar liens or claims which have been filed for work, labor or material (in full force 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seqeffect.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 4 contracts
Sources: Aircraft Purchase Agreement (Erickson Air-Crane Inc), Aircraft Purchase Agreement (Erickson Air-Crane Inc), Aircraft Purchase Agreement (Erickson Air-Crane Inc)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xii)¸(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvii) and 1.04(b)(xx(xviii)) , shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv), (xvii) and 1.04(b)(xx(xviii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the those representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv), (xvii) and 1.04(b)(xx(xviii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representation and warranties made by it pursuant to 1.04(b)(xii), (xiii), (xiv), (xv), (xvii) and (xviii)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ ▇▇▇ or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, with a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxii) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Each Transferred Mortgage Loan, at the time it was originated, complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable local, state and federal predatory and abusive lending laws;
(xvxiii) As of the Closing Date, no No Transferred Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Datethen current Standard & Poor’s LEVELS® Glossary. In addition, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No no Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home,” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no ;
(xiv) No Transferred Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law;
(xv) No Transferred Mortgage Loan was originated (or modified) on or after November 27March 1, 2002 and before March 7, 2003 which is secured by a “High-Cost Home Loan” subject mortgaged property located in Georgia;
(xvi) [Reserved]; and
(xvii) The information set forth in the Prepayment Charge Schedules included as part of the Mortgage Loan Schedules at Schedules A and B (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seqextent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure).); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 4 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (Lehman Mortgage Trust 2006-6), Mortgage Loan Sale and Assignment Agreement (Lehman Mortgage Trust 2006-5), Mortgage Loan Sale and Assignment Agreement (Lehman Mortgage Trust 2006-2)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xi)¸(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx(xvii)) ), shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xi)¸(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx(xvii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the those representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xi)¸(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx(xvii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to 1.04(b)(xi)¸(xii), (xiii), (xiv), (xv) and (xvii)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ ▇▇▇ or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, with a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxii) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Each Transferred Mortgage Loan, at the time it was originated, complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable local, state and federal predatory and abusive lending laws;
(xvxiii) As of the Closing Date, no No Transferred Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Datethen current Standard & Poor’s LEVELS® Glossary. In addition, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No no Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home,” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no ;
(xiv) No Transferred Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law;
(xv) No Transferred Mortgage Loan was originated (or modified) on or after November 27October 1, 2002 and before March 7, 2003 which is secured by a “High-Cost Home Loan” subject mortgaged property located in Georgia;
(xvi) [Reserved]; and
(xvii) The information set forth in the Prepayment Charge Schedules included as part of the Mortgage Loan Schedules at Schedules A and B (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the New Jersey Home Ownership Security Act of 2003 extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure).
(N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject c) In addition to the New Mexico Home Loan Protection Act (N.M.representations and warranties set forth in Section 1.04(b), all of which are also made by the Seller with respect to the Bank Originated Mortgage Loans as of the Closing Date, the Seller hereby further represents and warrants to the Depositor upon the delivery to the Depositor on the Closing Date of any Bank Originated Mortgage Loans, but solely as to each B
Appears in 3 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (Lehman Mortgage Trust 2007-6), Mortgage Loan Sale and Assignment Agreement (Lehman Mortgage Trust 2007-3), Mortgage Loan Sale and Assignment Agreement (Lehman Mortgage Trust 2007-4)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement;
(ii) The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of each the Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a the Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix), 1.04(b)(xx), 1.04(b)(xxi) and 1.04(b)(xx1.04(b)(xxii)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix), 1.04(b)(xx), 1.04(b)(xxi) and 1.04(b)(xx1.04(b)(xxii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix), 1.04(b)(xx), 1.04(b)(xxi) and 1.04(b)(xx1.04(b)(xxii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 3 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust Series 2006-Gp2), Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust Series 2006-Gp3), Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust Series 2006-Gp4)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv) and (xv), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii), 1.04(b)(xix(xiv) and 1.04(b)(xx(xv) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the any representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii), 1.04(b)(xix(xiv) and 1.04(b)(xx)(xv) by it) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (other than any representations and warranties made by it pursuant to Sections 1.04(b)(xii), (xiii), (xiv) and (xv)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on hereunder, as to each that, as of the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ Mae or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each The related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxii) As of the Closing Date, other than with respect to Retained Interest, no Each Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate the time it was made complied in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loanall material respects with applicable local, state and federal laws, including, but not limited to, all applicable predatory and abusive lending laws;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xviixiii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending law 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); no xiv) No Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” was at the time of origination subject to the New Jersey Home Ownership Security and Equity Protection Act of 2003 1994 (N.J.S.A. 46:10B-22 et seq.15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law; no Transferred and
(xv) The information set forth in the Prepayment Charge Schedules included as part of the Mortgage Loan Schedules at Schedules A and B (including the Prepayment Charge Summary attached thereto) is a “High-Cost Home Loan” subject complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the New Mexico Home extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure);
(c) In addition to the representations and warranties set forth in Section 1.04(b), all of which are also made by the Seller with respect to the Bank Originated Mortgage Loans as of the Cut-off Date, the Seller hereby further represents and warrants to the Depositor upon the delivery to the Depositor on the Closing Date of any Bank Originated Mortgage Loans, but solely as to each Bank Originated Mortgage Loan, that, as of the Closing Date:
(i) With respect to any hazard insurance policy covering a Bank Originated Mortgage Loan Protection Act (N.M.and the related Mortgaged Property, the Seller has not engaged in, and has no knowledge of the Bank’s or the borrower’s having engaged in, any act or omission which would impair the coverage of any such policy, the benefits of the endorsement provided for therein, 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
Appears in 3 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp Mortgage Pass-Through Certificates 2004-11xs), Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp Mortgage Pass-Through Certificates 2004-9xs), Mortgage Loan Sale and Assignment Agreement (Structured Asset Sec Corp Mort Pass THR Certs Ser 2004 6xs)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv), (xvi) and 1.04(b)(xx(xvii)) , shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv), (xvi) and 1.04(b)(xx(xvii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the any representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv), (xvi) and 1.04(b)(xx)(xvii) by it) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (other than any representations and warranties made by it pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv), (xvi) and (xvii)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on hereunder, as to each that, as of the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ Mae or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each The related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxii) As of Each Transferred Mortgage Loan at the Closing Datetime it was made complied in all material respects with applicable local, other than with respect to Retained Intereststate and federal laws, including, but not limited to, all applicable predatory, abusive and fair lending laws; and, specifically, (a) no Transferred Mortgage Loan provides for interest other than at either (i) secured by a single fixed rate Mortgaged Property located in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 New Jersey is a “High-Cost Home Loan” subject to as defined in the New Jersey Home Ownership Security Act of effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.); (b) no Transferred Mortgage Loan secured by a Mortgaged Property located in New Mexico is a “High-Cost Home Loan” subject to as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.
Appears in 3 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust 2007-1), Mortgage Loan Sale and Assignment Agreement (LXS 2007-3), Mortgage Loan Sale and Assignment Agreement (LXS 2007-8h)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement;
(ii) The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have has been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption This Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, Depositor constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix), 1.04(b)(xx) and 1.04(b)(xx1.04(b)(xxi)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix), 1.04(b)(xx) and 1.04(b)(xx1.04(b)(xxi) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix), 1.04(b)(xx) and 1.04(b)(xx1.04(b)(xxi)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 3 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (Lehman XS 2007-4n), Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust Series 2007-7n), Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust Series 2007-2n)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xi)¸(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx(xvii)) ), shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xi)¸(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx(xvii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the those representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xi)¸(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx(xvii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to 1.04(b)(xi)¸(xii), (xiii), (xiv), (xv) and (xvii)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ Mae or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, with a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxii) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Each Transferred Mortgage Loan, at the time it was originated, complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable local, state and federal predatory and abusive lending laws;
(xvxiii) As of the Closing Date, no No Transferred Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Datethen current Standard & Poor’s LEVELS® Glossary. In addition, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No no Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home,” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no ;
(xiv) No Transferred Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law;
(xv) No Transferred Mortgage Loan was originated (or modified) on or after November 27October 1, 2002 and before March 7, 2003 which is secured by a “High-Cost Home Loan” subject mortgaged property located in Georgia;
(xvi) [Reserved]; and
(xvii) The information set forth in the Prepayment Charge Schedules included as part of the Mortgage Loan Schedules at Schedules A and B (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the New Jersey Home Ownership Security Act of 2003 extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure).
(N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject c) In addition to the New Mexico Home Loan Protection Act (N.M.representations and warranties set forth in Section 1.04(b), all of which are also made by the Seller with respect to the Bank Originated Mortgage Loans as of the Closing Date, the Seller hereby further represents and warrants to the Depositor upon the delivery to the Depositor on the Closing Date of any Bank Originated Mortgage Loans, but solely as to each B
Appears in 3 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (Lehman Mortgage Trust 2007-5), Mortgage Loan Sale and Assignment Agreement (Lehman Mortgage Trust 2007-7), Mortgage Loan Sale and Assignment Agreement (Lehman Mortgage Trust 2007-8)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx(xvi)) , shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx(xvi) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the any representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx)(xvi) by it) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (other than any representations and warranties made by it pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv) and (xvi)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on hereunder, as to each that, as of the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ Mae or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each The related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxii) As of the Closing Date, other than with respect to Retained Interest, no Each Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate the time it was made complied in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loanall material respects with applicable local, state and federal laws, including, but not limited to, all applicable predatory and abusive lending laws;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xviixiii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” High Cost Loan or “predatory” Covered Loan, as applicable (as such terms are defined in the then current Standard & Poor’s LEVELS® Glossary which is now Version 5.6c Revised, Appendix E) and no mortgage loan under originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act;
(xiv) No Transferred Mortgage Loan was originated (or modified) on or after February 1, 2002 and before March 7, 2003 which is secured by a mortgaged property located in Georgia;
(xv) No Transferred Mortgage Loan that is secured by property located in Illinois is in violation of the provisions of the Illinois Interest Act (815 Ill. Comp. Stat. 205/1 et seq.);
(xvi) No Transferred Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law; The information set forth in the Prepayment Charge Schedules included as part of the Mortgage Loan Schedules at Schedules A and B (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state or and local predatory or abusive lending law (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally 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 feesthe collectibility thereof may be limited due to acceleration in connection with foreclosure); no Transferred and
(xvii) Each of the Pool 2 Mortgage Loan originated on Loans will have a debt-to-income ratio, as of the Closing Date, less than or after November 27, 2003 is a “High-Cost Home Loan” subject equal to 60%.
(c) In addition to the New Jersey Home Ownership Security Act representations and warranties set forth in Section 1.04(b), all of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject which are also made by the Seller with respect to the New Mexico Home Loan Protection Act (N.M.Bank Originated Mortgage Loans as of the Cut-off Date, the Seller hereby further represents and warrants to the Depositor upon the delivery to the Depositor on the Closing Date of any Bank Originated Mortgage Loans, but solely as to each Bank Origin
Appears in 3 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust 2006-1), Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust 2006-3), Mortgage Loan Sale and Assignment Agreement (LXS 2006-7)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement;
(ii) The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix), 1.04(b)(xx) and 1.04(b)(xx1.04(b)(xxi)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix), 1.04(b)(xx) and 1.04(b)(xx1.04(b)(xxi) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix), 1.04(b)(xx) and 1.04(b)(xx1.04(b)(xxi)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 3 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust Series 2006-16n), Mortgage Loan Sale and Assignment Agreement (Structured Adjustable Rate Mortgage Loan Trust Series 2007-6), Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust Series 2006-12n)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing DatePurchaser that:
(ia) This Agreement constitutes valid and binding obligations of the Seller, enforceable against the Seller in accordance with its terms, subject to applicable Bankruptcy Laws and other laws or equitable principles of general application affecting the rights of creditors generally.
(b) The Option Shares are free and clear of any claim, pledge, charge, lien, preemptive rights, marital rights, restrictions on transfers, proxies, voting agreements and any other encumbrance whatsoever, except as contemplated by this Agreement. The Seller has not entered into or is a party to any agreement that would give any Person any right or claim in or to the Option Shares. The Seller is a corporation duly organized, validly existing not insolvent and in good standing under neither the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform execution of this Agreement by the Seller nor the performance by the Seller of its obligations under this Agreement and will render the Assignment and Assumption Agreement;Seller insolvent.
(iic) The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part is not a resident or citizen of the Seller; neither PRC.
(d) Neither the execution and or delivery of this Agreement or by the Assignment and Assumption Agreement, Seller nor the consummation fulfillment or compliance by the Seller with any of the transactions herein terms hereof shall, with or therein contemplatedwithout the giving of notice and/or the passage of time, nor compliance with the provisions hereof or thereof(i) conflict with, will conflict with or result in a breach of the terms, conditions or provisions of, or constitute a default under, under any of the provisions of any law, governmental rule, regulation, judgment, decree agreement or order binding on instrument to which the Seller is a party or its properties by which he or the certificate of incorporation his property is or bylaws of the Seller;
may be bound, or (iiiii) require any consent, license, permit, authorization, approval or other action by any Person which has not yet been obtained or received. The execution, delivery and performance of this Agreement by the Seller of this Agreement and compliance with the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered provisions hereof by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreementdo not, and the Depositorshall not, in the case violate any provision of this Agreement, constitutes a valid and binding obligation of any Law to which the Seller enforceable against is subject or by which it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; andbound.
(ve) There are no actionslawsuits, suits actions or proceedings (or to the best knowledge of the Seller, investigations), claims or demands or other proceedings pending or, to the best of the knowledge of the Seller, threatened or likely against the Seller which, if resolved in a manner adverse to be asserted against or affecting the Seller, before would adversely affect the right or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment ability of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its carry out his obligations under set forth in this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 3 contracts
Sources: Shares Purchase Option Agreement, Shares Purchase Option Agreement (China Zenix Auto International LTD), Option Agreement (Southern China Livestock, Inc.)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement and Agreement, the Assignment and Assumption AgreementAgreement and the B▇▇▇ of Sale;
(ii) The execution and delivery by the Seller of this Agreement and Agreement, the Assignment and Assumption Agreement and the B▇▇▇ of Sale have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or Agreement, the Assignment and Assumption AgreementAgreement or the B▇▇▇ of Sale, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and Agreement, the Assignment and Assumption Agreement and the B▇▇▇ of Sale and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and Agreement, the Assignment and Assumption Agreement and the B▇▇▇ of Sale has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption AgreementAgreement and the B▇▇▇ of Sale, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or Agreement, the Assignment and Assumption Agreement or the B▇▇▇ of Sale or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or Agreement, the Assignment and Assumption AgreementAgreement or the B▇▇▇ of Sale.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 3 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Adjustable Rate Mortgage Loan Trust Series 2007-9), Mortgage Loan Sale and Assignment Agreement (Structured Adjustable Rate Mortgage Loan Trust Series 2007-8), Mortgage Loan Sale and Assignment Agreement (Structured Adjustable Rate Mortgage Loan Trust Series 2007-10)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv), (xvi) and 1.04(b)(xx(xvii)) , shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv), (xvi) and 1.04(b)(xx(xvii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the any representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv), (xvi) and 1.04(b)(xx)(xvii) by it) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (other than any representations and warranties made by it pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv), (xvi) and (xvii)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on hereunder, as to each that, as of the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ ▇▇▇ or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each The related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxii) As of Each Transferred Mortgage Loan at the Closing Datetime it was made complied in all material respects with applicable local, other than with respect to Retained Intereststate and federal laws, including, but not limited to, all applicable predatory, abusive and fair lending laws; and, specifically, (a) no Transferred Mortgage Loan provides for interest other than at either (i) secured by a single fixed rate Mortgaged Property located in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 New Jersey is a “High-Cost Home Loan” subject to as defined in the New Jersey Home Ownership Security Act of effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.); (b) no Transferred Mortgage Loan secured by a Mortgaged Property located in New Mexico is a “High-Cost Home Loan” subject to as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.
Appears in 3 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust 2006-20), Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust 2007-9), Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust 2007-11)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing DatePurchaser that:
(ia) The Seller is a corporation [public/private] limited company, duly organized, validly existing existing, and in good standing under the laws governing its creation Laws of Afghanistan, and existence and has complied fully with all requirements of the applicable Laws of Afghanistan.
(b) The Seller has full corporate power and authority to execute and deliver this Agreement, to own its property, to carry on its business as presently conductedproperties, and to enter into execute, to deliver, and to perform its obligations under this Agreement Agreement. Execution, delivery, and the Assignment and Assumption Agreement;
(ii) The execution and delivery by the Seller performance of this Agreement and by the Assignment and Assumption Agreement have Seller:
(i) has been duly authorized by all necessary requisite corporate action on the part of the Seller; neither , and no other proceedings on the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation part of the transactions herein Seller or therein contemplatedany other Person are necessary for such authorization; and
(ii) will not:
(A) violate either the Laws of Afghanistan or any applicable order of any Public Sector Entity; or any provision of the Memorandum and Articles of Association of the Seller; or
(B) violate, nor compliance with the provisions hereof or thereofbe in conflict with, will conflict with or result in a breach of, or constitute a default under, any of indenture, agreement for borrowed money, bond, note, instrument, or other agreement to which the provisions of any law, governmental rule, regulation, judgment, decree Seller is a Party or order binding on by which the Seller or its properties property is bound, excluding defaults or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed violations that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value business, properties, financial condition, or results of operation of the related Mortgaged Property as security Seller or on its ability to perform its obligations hereunder.
(c) Assuming it constitutes a legal, valid, and binding obligation of the Purchaser, this Agreement constitutes a legal, valid, and binding obligation of the Seller, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium, or other similar laws now or hereafter in effect relating to creditors’ rights.
(d) To the best of its knowledge after reasonable inquiry, except for the related Transferred Mortgage Loan Seller Consents, no filing or registration with, no notice to, and no permit, authorization, Consent, or approval of, any Person is required for the use for which execution, delivery, or performance of this Agreement by the premises were intended;Seller.
(xe) The Seller is not in default under any agreement or instrument of any nature whatsoever to which it is a Party or by which it is bound, in any manner that would have a material adverse effect on its ability to perform its obligations hereunder, or on the validity or enforceability of this Agreement.
(f) There are is no mechanics’ or similar liens or claims which have been filed for workaction, 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 tosuit, proceeding, or equal or coordinate withinvestigation pending or, to the lien of the related Mortgage;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan associationSeller’s knowledge, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either threatened (i) a single fixed rate in effect throughout the term for dissolution of the Transferred Mortgage Loan Seller; or (ii) against the Seller, which, if adversely determined, would have a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in material adverse effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Dateon its ability to perform its obligations hereunder, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” validity or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act enforceability of 2003 (N.J.S.A. 46:10B-22 et seqthis Agreement.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 2 contracts
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii) through (xvi)), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xxthrough (xvi) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the those representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)through (xvi) by it) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representation and warranties made by it pursuant to Sections 1.04(b)(xii) through (xvi)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ Mae or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, with a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxii) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Each Transferred Mortgage Loan, at the time it was originated, complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable local, state and federal predatory and abusive lending laws;
(xvxiii) As of the Closing Date, no No Transferred Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Datethen current Standard & Poor’s LEVELS® Glossary which is now Version 5.6b Revised, based on delinquencies in payment on the Transferred Mortgage LoansAppendix E. In addition, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No no Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home,” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no ;
(xiv) No Transferred Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law;
(xv) No Transferred Mortgage Loan (other than the two Mortgage Loans listed on Schedule B hereto) was originated (or modified) on or after November 27January 1, 2002 and before March 7, 2003 which is secured by a “High-Cost Home Loan” subject to mortgaged property located in Georgia;
(xvi) No Transferred Mortgage Loan that is secured by property located in Illinois is in violation of the New Jersey Home Ownership Security provisions of the Illinois Interest Act of 2003 (N.J.S.A. 46:10B-22 et 815 Ill. Comp. Stat. 205/1 et. seq.); no Transferred and
(xvii) The information set forth in the Prepayment Charge Schedules included as part of the Mortgage Loan Schedules at Schedules A and B (including the Prepayment Charge Summary attached thereto) is a “High-Cost Home Loan” subject complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the New Mexico Home Loan Protection Act extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure).
(N.M.c) In addition to the representations and warranties set forth in Section 1.04(b), all of which are also made by the Seller with respect to the Bank Originated Mortgage Loans as of the
Appears in 2 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp Trust 2005-6), Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp Mortgage Pass-Through Certificates, Series 2005-10)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement and this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each the Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such the Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a the Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xiii) through (viii)), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such the Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xiii) and 1.04(b)(xxthrough (viii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xiii) and 1.04(b)(xxthrough (viii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii) through (viii)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such the Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such the Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ ▇▇▇ or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a Transferred the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each In the case of all of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred such Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any In the case of all of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(x) [Reserved];
(xi) Each Transferred Mortgage Loan was originated by will have a savings and loan association, savings bank, commercial bank, credit union, insurance company LTV of 100% 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 less as of the National Housing ActClosing Date;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 1.860G-2;
(determined without regard to Treas. Reg. §1.860G-2(fxiii) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)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;
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred No Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Datethen current Standard & Poor’s LEVELS® Glossary, based on delinquencies in payment on the Transferred Mortgage Loanswhich is now Version 5.7, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Appendix E. In addition, no Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred ;
(xv) No Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law;
(xvi) The information set forth in the Prepayment Charge Schedule, included as part of the Mortgage Loan Schedule at Schedule A hereto (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure);
(xvii) No Mortgage Loan was originated (or modified) on or after November 27October 1, 2002 through March 6, 2003 which is secured by a mortgaged property located in Georgia; and
(xviii) In addition to the foregoing representations and warranties made in subparagraphs (i) through (xvii) of this Section 1.04(b), the Seller further represents and warrants upon delivery of the Pool 1 Mortgage Loans, as to each such Mortgage Loan, that:
(a) Each Pool 1 Mortgage Loan is in compliance with the anti-predatory lending eligibility for purchase requirements of ▇▇▇▇▇▇ Mae’s Selling Guide;
(b) No Pool 1 Mortgage Loan secured by a Mortgaged Property located in Georgia is a “High-Cost Home Loan” subject to as defined in the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.)Georgia Fair Lending Act; no Transferred Pool 1 Mortgage Loan secured by a Mortgaged Property located in New York is a “High-Cost Home Loan” subject to as defined in Section 6-1 of the New Mexico York State Banking Law; no Pool 1 Mortgage Loan secured by a Mortgaged Property located in Arkansas is a “High-Cost Home Loan” as defined in the Arkansas Home Loan Protection Act effective June 24, 2003 (N.M.Act 1340 o
Appears in 2 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (First Franklin Mortgage Loan Trust 2006-Ff12), Mortgage Loan Sale and Assignment Agreement (First Franklin Mortgage Loan Trust 2006-Ff14)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement and this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each the Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such the Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a the Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xiii) through (xviii)), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such the Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xiii) through (xviii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xiii) and 1.04(b)(xxthrough (xviii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii) through (xviii)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such the Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such the Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ ▇▇▇ or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a Transferred the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each In the case of all of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred such Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any In the case of all of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, There is no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(x) [Reserved];
(xi) Each Transferred Mortgage Loan was originated by will have a savings and loan association, savings bank, commercial bank, credit union, insurance company LTV of 100% 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 less as of the National Housing ActClosing Date;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 1.860G-2;
(determined without regard to Treas. Reg. §1.860G-2(fxiii) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)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;
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred No Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Datethen current Standard & Poor’s LEVELS® Glossary, based on delinquencies in payment on the Transferred Mortgage Loanswhich is now Version 5.6(c), the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Appendix E. In addition, no Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred ;
(xv) No Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law;
(xvi) The information set forth in the Prepayment Charge Schedule, included as part of the Mortgage Loan Schedule at Schedule A hereto (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure);
(xvii) No Mortgage Loan was originated (or modified) on or after October 1, 2002 through March 7, 2003 which is secured by a mortgaged property located in Georgia;
(xviii) In addition to the foregoing representations and warranties made in subparagraphs (i) through (xvii) of this Section 1.04(b), the Seller further represents and warrants that upon delivery of the Pool 1 Mortgage Loans:
(a) The outstanding Scheduled Principal Balance of each Pool 1 Mortgage Loan does not exceed the applicable maximum original loan amount limitations with respect to first lien one-to-four family residential mortgage loans as set forth in the ▇▇▇▇▇▇▇ Mac Selling Guide;
(b) There is no Pool 1 Mortgage Loan that was originated on or after November 27March 7, 2003 which is a “High-Cost Home Loanhigh cost home loan” subject to as defined under the New Jersey Home Ownership Security Act of 2003 Georgia Fair Lending Act;
(N.J.S.A. 46:10B-22 et seq.); no Transferred c) No Pool 1 Mortgage Loan is a “High-Cost Home Loan” subject to as defined in Section 6-1 of the New Mexico York State Banking Law; no Pool 1 Mortgage Loan is a “High-Cost Home Loan” as defined in the Arkansas Home Loan Protection Act (N.M.Act 1340 of 2003); no Pool 1 Mortgage Loan
Appears in 2 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (First Franklin Mortgage Loan Trust 2005-Ff10), Mortgage Loan Sale and Assignment Agreement (First Franklin Mortgage Loan Trust 2005-Ff9)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv) and (xv), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii), 1.04(b)(xix(xiv) and 1.04(b)(xx(xv) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the any representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii), 1.04(b)(xix(xiv) and 1.04(b)(xx)(xv) by it) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (other than any representations and warranties made by it pursuant to Sections 1.04(b)(xii), (xiii), (xiv) and (xv)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on hereunder, as to each that, as of the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ ▇▇▇ or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each The related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxii) As of the Closing Date, other than with respect to Retained Interest, no Each Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate the time it was made complied in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loanall material respects with applicable local, state and federal laws, including, but not limited to, all applicable predatory and abusive lending laws;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xviixiii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” High Cost Loan or “predatory” Covered Loan, as applicable (as such terms are defined in the then current Standard & Poor's LEVELS® Glossary which is now Version 5.6 Revised, Appendix E) and no mortgage loan under originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act;
(xiv) No Transferred Mortgage Loan that is secured by property located in Illinois is in violation of the provisions of the Illinois Interest Act (815 Ill. Comp. Stat. 205/1 et seq.);
(xv) No Transferred Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law; and
(xvi) The information set forth in the Prepayment Charge Schedules included as part of the Mortgage Loan Schedules at Schedules A and B (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state or and local predatory or abusive lending law (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure).
(c) In addition to the representations and warranties set forth in Section 1.04(b), all of which are also made by the Seller with respect to the Bank Originated Mortgage Loans as of the Cut-off Date, the Seller hereby further represents and warrants to the Depositor upon the delivery to the Depositor on the Closing Date of any Bank Originated Mortgage Loans, but solely as to each Bank Originated Mortgage Loan, that, as of the Closing Date:
(i) With respect to any hazard insurance policy covering 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); no Transferred Bank Originated Mortgage Loan originated on and the related Mortgaged Property, the Seller has not engaged in, and has no knowledge of the Bank’s or after November 27the borrower’s having engaged in, 2003 is a “High-Cost Home Loan” subject to any act or omission which would impair the New Jersey Home Ownership Security Act coverage of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.any suc
Appears in 2 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp Mortgage Pass-Through Certificates, Series 2004-21xs), Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp Mortgage Pass-Through Certificates, Series 2004-19-Xs)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each the Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a the Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii) and 1.04(b)(xx(xviii)) ), shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii) and 1.04(b)(xx(xviii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii) and 1.04(b)(xx(xviii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii), (xiv), (xv), (xvi), (xvii) and (xviii)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ Mae or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a Transferred the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each In the case of all of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred such Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any In the case of all of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company or similar institution that is supervised and examined by a Federal federal or State state authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As will have a CLTV of 100% or less as of the Closing Date, each Transferred ;
(xii) Each Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 1.860G-2;
(determined without regard to Treas. Reg. §1.860G-2(fxiii) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)Each Mortgage Loan at the time it was originated complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable predatory and abusive lending laws;
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred No Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Datethen current Standard & Poor’s LEVELSâ Glossary, based on delinquencies in payment on the Transferred Mortgage Loanswhich is now Version 5.6b, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Appendix E. In addition, no Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home,” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred ;
(xv) No Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law;
(xvi) The information set forth in the Prepayment Charge Schedules, included as part of the Mortgage Loan Schedule at Schedule A hereto (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure);
(xvii) No Mortgage Loan was originated (or modified) on or after November 27October 1, 2002 through March 6, 2003 which is secured by a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 mortgaged property located in Georgia;
(N.J.S.A. 46:10B-22 et seq.); no Transferred xviii) Each Mortgage Loan is was made or acquired by a “High-Cost Home Loan” subject Person organized or chartered under the laws of the State of Indiana, any other state, or the United States relating to banks, trust companies, savings associations, savings banks, credit unions, or industrial land and investment companies;
(xix) [Reserved]
(c) With respect to any of the New Mexico Home Loan Protection Act foregoing representations and warranties made in subparagraphs (N.M.xiii), (xiv), (xv), (xvi), (xvii) and (xviii) of Section 1.04(b), a brea
Appears in 2 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp Mortgage Pass-Through Certificates, Series 2005-Wf2), Mortgage Loan Sale and Assignment Agreement (SASCO Mortgage Loan Trust 2005-Wf3)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx(xvi)) , shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx(xvi) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the any representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx)(xvi) by it) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (other than any representations and warranties made by it pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv) and (xvi)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on hereunder, as to each that, as of the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ ▇▇▇ or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each The related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxii) As of the Closing Date, other than with respect to Retained Interest, no Each Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate the time it was made complied in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loanall material respects with applicable local, state and federal laws, including, but not limited to, all applicable predatory and abusive lending laws;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xviixiii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” High Cost Loan or “predatory” Covered Loan, as applicable (as such terms are defined in the then current Standard & Poor's LEVELS® Glossary which is now Version 5.6b Revised, Appendix E) and no mortgage loan under originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act;
(xiv) No Transferred Mortgage Loan was originated (or modified) on or after February 1, 2002 and before March 7, 2003 which is secured by a mortgaged property located in Georgia;
(xv) No Transferred Mortgage Loan that is secured by property located in Illinois is in violation of the provisions of the Illinois Interest Act (815 Ill. Comp. Stat. 205/1 et seq.);
(xvi) No Transferred Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law; and
(xvii) The information set forth in the Prepayment Charge Schedules included as part of the Mortgage Loan Schedules at Schedules A and B (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state or and local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject except to the New Jersey Home Ownership Security Act of 2003 extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure).
(N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject c) In addition to the New Mexico Home Loan Protection Act representations and warranties set forth in Section 1.04(b), all of which are also made by the Seller with respect to the Bank Originated Mortgage Loans as of the Cut-off Date, the Seller hereby further represents and warrants to the Depositor upon the delivery to the Depositor on the Closing Date of any Bank Originated Mortgage Loans, but solely as to each Bank Originated Mortgage Loan, that, as of the Closing Date:
(N.M.i) With respect to any hazard insurance policy covering a Bank Originated Mortga
Appears in 2 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp. 2005-9xs), Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp. Mortgage Loan Trust 2005-7xs)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of transfer of the related Mortgage Loans to the Bank pursuant to such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and or warranty (other than except in the case of a breach by the Seller of the these representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi) and 1.04(b)(xx)(xvii) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi) and 1.04(b)(xx(xvii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi) and 1.04(b)(xx(xvii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of these representations and warranties made pursuant to Sections 1.04(b)(xiii), (xiv) and (xv)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement[Reserved];
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first junior lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) senior liens of such Mortgage, (2) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (23) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (34) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first second lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy[Reserved];
(viii) To the best of the Seller’s knowledge, no No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xi) Each Transferred Mortgage Loan will have a CLTV of 100% or less as of the Closing Date;
(xii) Each Transferred Mortgage Loan at the time it was made complied in all material respects with applicable local, state, and federal laws including, but not limited that is secured by residential real property (or a leasehold interest therein) has a loan-to, all applicable predatory and abusive lending laws;
-value ratio of 100% or less (xiii) As by Scheduled Principal Balance as of the Closing Cut-off Date, each Transferred ). Each Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 1.860G-2;
(determined without regard to Treas. Reg. §1.860G-2(fxiii) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)Each Transferred Mortgage Loan at the time it was originated, complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable local, state and federal predatory and abusive lending laws;
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no No Transferred Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Datethen current Standard & Poor’s LEVELSâ Glossary, based on delinquencies in payment on the Transferred Mortgage LoansAppendix E. In addition, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No no Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home,” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no ;
(xv) No Transferred Mortgage Loan was originated (or modified) on or after November 27October 1, 2002 through March 6, 2003 which is secured by a “High-Cost Home Loan” mortgaged property located in Georgia;
(xvi) No Transferred Mortgage Loan was at the time of origination subject to the New Jersey Home Ownership Security and Equity Protection Act of 2003 1994 (N.J.S.A. 46:10B-22 et seq15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law; and
(xvii) The information set forth in the Prepayment Charge Schedules, included as part of the Mortgage Loan Schedules at Schedules A-1 and A-2 hereto (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure).
(c) In addition to the representations and warranties set forth in Section 1.04(b); , all of which are also made by the Seller with respect to the Bank Originated Mortgage Loans as of the Closing Date, the Seller hereby further represents and warrants to the Depositor upon the delivery to the Depositor on the Closing Date of any Bank Originated Mortgage Loans, but solely as to each Bank Originated Mortgage Loan, that, as of the Closing Date:
(i) With respect to any hazard insurance policy covering a Bank Originated Mortgage Loan and the related Mortgaged Property, the Seller has not engaged in, and has no Transferred knowledge of the Bank’s or the borrower’s having engaged in, any act or omission which would impair the coverage of any such policy, the benefits of the endorsement provided for therein, 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;
(ii) Neither the Seller nor the Bank has waived the performance by the borrower of any action, if the Mortgagor’s failure to perform such action would cause a Bank Originated Mortgage Loan to be in default, nor has the Seller or the Bank waived any default resulting from any action or inaction by the borrower;
(iii) 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, if necessary to protect the interests of the Depositor and which has been delivered to the related Custodian;
(iv) The Mortgaged Property relating to each Bank Originated Mortgage Loan is a “Highfee simple property located in the state identified in the Mortgage Loan Schedule and consists of a parcel of real property with a detached single family residence erected thereon, or a two- to four-Cost Home Loan” subject family dwelling, or an individual condominium unit in a low-rise condominium project, or an individual unit in a planned unit development; provided, however, that any condominium project or planned unit development shall conform with the applicable ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac requirements regarding such dwellings. No portion of the Mortgaged Property is used for commercial purposes;
(v) The Mortgage Note and the Mortgage 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 New Mexico Home Mortgage Note and the Mortgage and any other related agreement had legal capacity to enter into the Bank Originated Mortgage Loan Protection Act and to execute and deliver the Mortgage Note and the Mortgage and any other related agreement, and the Mortgage Note and the Mortgage have been duly and properly executed by such parties. The documents, instruments and agreements submitted for loan underwriting were not falsified and contain no untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the information and statements therein not misleading. To the best of Seller’s knowledge, no fraud was committed in connection with the origination of the Bank Originated Mortgage Loan;
(N.M.vi) Each Bank Originated Mortgage Loan has been closed and the proceeds of the Bank Originated 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 Bank Originated Mortgage Loan and the recording of the Mortga
Appears in 2 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp 2005-S5), Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp 2005-S6)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor Purchaser that as of the Closing Date:
(ia) The Seller has taken all steps necessary to transfer all of the Seller's right, title and interest in and to the Purchased Assets to the Purchaser.
(b) Immediately prior to the transfers contemplated by this Agreement, the Seller was the sole owner and holder of the Purchased Assets, free and clear of any and all liens, pledges, charges or security interests of any nature.
(c) The Seller (i) is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and of Delaware, (ii) has the full corporate right, power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement and the Assignment Ancillary Agreements and Assumption Agreement;
(ii) The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of to consummate the transactions contemplated hereby and thereby (iii) has obtained all requisite company or similar authorizations, consents or approvals applicable to do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;so.
(ivd) Each of this This Agreement and the Assignment and Assumption Agreement has Ancillary Agreements have been duly executed and delivered by the Seller andand constitute the legal, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation obligations of the Seller enforceable against it in accordance with its respective their terms, except as such the enforceability thereof may be subject to (A) limited by any applicable bankruptcy and insolvency laws and other bankruptcy, reorganization, insolvency, moratorium or similar laws affecting the enforcement of the creditors' rights of creditors generally and (B) by general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; andequity.
(ve) There are The outstanding principal balance of the Quanta Convertible Note is $12,337,500, all interest payments due thereunder have been paid when due and no actionsprincipal or interest thereunder has been prepaid, suits forgiven or proceedings pending orpostponed, and to the knowledge of Seller there exists no material default or event of default thereunder.
(f) Since September 30, 1999, to the knowledge of the Seller there has not occurred any material adverse change or any threatened material adverse change in the business, operations, properties, assets or condition (financial or otherwise) of the Companies, other than those disclosed to the public and those disclosed to the Purchaser in writing prior to the date hereof.
(g) To the knowledge of Seller, threatened no action, suit or likely to be asserted proceeding has been commenced against any of the Companies before any court or affecting the Seller, before or by any court, administrative agency, arbitrator or any governmental body body, agency or official except for such action, suit or proceeding that could not reasonably be expected to have a material and adverse effect on the business, operations, properties, assets or condition (Afinancial or otherwise) of such Company.
(h) All material information given by the Seller to the Purchaser in connection with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is was true and correct in all material respects at on the date or dates respecting which such information is given;was given and on the date hereof.
(iii) There are no defaults (other than delinquency in payment) in complying with Any approvals, filings and consents relating to the terms transfer of any Mortgage, and the Purchased Assets from the Seller has no notice as to the Purchaser required to be obtained from or made with any taxesgovernmental or quasi-governmental agency, governmental assessmentsentity, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which body from whom approval is required under applicable law have not been paid;made or obtained.
(iiij) Except Assuming that the Purchaser's representations set forth in this Agreement are true and correct, the sale of the Purchased Assets in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on manner contemplated by this Agreement by the related Mortgaged Property to Seller will be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in exempt from the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the registration requirements of the guidelines Securities Act by reason of FNMA Section 4(2) thereof.
(k) No agent, broker or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements other Person acting pursuant to authority of the current guidelines of the Federal Flood Insurance Administration Seller is entitled to any commission or finder's fee in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of connection with the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, . Except as set forth 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;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositorthis Section 3.1, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan makes no representation or warranty whatsoever to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title Purchaser concerning the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in Purchased Assets. Without limiting the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator generality of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loansforegoing, the Seller would not initiate foreclosure proceedings with respect to makes no representation or warranty concerning the Companies, their respective assets, financial performance, financial condition, and prospects, or any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seqother matter affecting them.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Enron North America Corp), Purchase and Sale Agreement (Enron North America Corp)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of transfer of the related Mortgage Loans to the Bank pursuant to such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and or warranty (other than except in the case of a breach by the Seller of the these representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi) and 1.04(b)(xx)(xvii) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi) and 1.04(b)(xx(xvii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi) and 1.04(b)(xx(xvii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of these representations and warranties made pursuant to Sections 1.04(b)(xiii), (xiv) and (xv)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement[Reserved];
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first junior lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) senior liens of such Mortgage, (2) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (23) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (34) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first second lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy[Reserved];
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xi) Each Transferred Mortgage Loan will have a CLTV of 100% or less as of the Closing Date;
(xii) Each Transferred Mortgage Loan at the time it was made complied in all material respects with applicable local, state, and federal laws including, but not limited that is secured by residential real property (or a leasehold interest therein) has a loan-to, all applicable predatory and abusive lending laws;
-value ratio of 100% or less (xiii) As by Scheduled Principal Balance as of the Closing Cut-off Date, each Transferred ). Each Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 1.860G-2;
(determined without regard to Treas. Reg. §1.860G-2(fxiii) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)Each Transferred Mortgage Loan at the time it was originated, complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable local, state and federal predatory and abusive lending laws;
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no No Transferred Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing DateStandard & Poor’s LEVELSâ Glossary, based on delinquencies Version 5.6 Revised, Appendix E, in payment effect on the Transferred Mortgage Loansdate hereof. In addition, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No no Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home,” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no ;
(xv) No Transferred Mortgage Loan was originated (or modified) on or after November 27October 1, 2002 through March 6, 2003 which is secured by a “High-Cost Home Loan” mortgaged property located in Georgia;
(xvi) No Transferred Mortgage Loan was at the time of origination subject to the New Jersey Home Ownership Security and Equity Protection Act of 2003 1994 (N.J.S.A. 46:10B-22 et seq15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law; and
(xvii) The information set forth in the Prepayment Charge Schedules, included as part of the Mortgage Loan Schedules at Schedules A-1 and A-2 hereto (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure). It is understood and agreed that the representations and warranties set forth in Section 1.04(b) and 1.04(c) herein shall survive the Closing Date. Upon discovery by either the Seller or the Depositor of a breach of any of the foregoing representations and warranties (excluding a breach of subparagraph (xvii) under Section 1.04(b)) that adversely and materially affects the value of the related Mortgage Loan and that does not also constitute a breach of a representation or warranty of a Transferor in the related Transfer Agreement, the party discovering such breach shall give prompt written notice to the other party; provided, however, that notwithstanding anything to the contrary herein, this paragraph shall be specifically applicable to a breach by the Seller of the representations made pursuant to subparagraphs (xiii), (xiv) and (xv) of Section 1.04(b) irrespective of a Transferor’s breach of a comparable representation or warranty made in the related Transfer Agreement. Within 60 days of the discovery of any such breach, the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Depositor at the applicable Purchase Price or (c) within the two-year period following the Closing Date, substitute a Qualifying Substitute Mortgage Loan for the affected Mortgage Loan.
(c) In addition to the representations and warranties set forth in Section 1.04(b); , all of which are also made by the Seller with respect to the Bank Originated Mortgage Loans as of the Cut-off Date, the Seller hereby further represents and warrants to the Depositor upon the delivery to the Depositor on the Closing Date of any Bank Originated Mortgage Loans, but solely as to each Bank Originated Mortgage Loan, that, as of the Cut-off Date:
(i) With respect to any hazard insurance policy covering a Bank Originated Mortgage Loan and the related Mortgaged Property, the Seller has not engaged in, and has no Transferred knowledge of the Bank’s or the borrower’s having engaged in, any act or omission which would impair the coverage of any such policy, the benefits of the endorsement provided for therein, 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;
(ii) Neither the Seller nor the Bank has waived the performance by the borrower of any action, if the Mortgagor’s failure to perform such action would cause a Bank Originated Mortgage Loan to be in default, nor has the Seller or the Bank waived any default resulting from any action or inaction by the borrower;
(iii) 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, if necessary to protect the interests of the Depositor and which has been delivered to the related Custodian;
(iv) The Mortgaged Property relating to each Bank Originated Mortgage Loan is a “Highfee simple property located in the state identified in the Mortgage Loan Schedule and consists of a parcel of real property with a detached single family residence erected thereon, or a two- to four-Cost Home Loan” subject to family dwelling, or an individual condominium unit in a low-rise condominium project, or an individual unit in a planned unit development; provided, however, that any condominium project or planned unit development shall conform with the New Mexico Home Loan Protection Act (N.M.applicable ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac requirements regarding such dwellings. No porti
Appears in 2 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp), Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp 2004-S3)
Representations and Warranties of the Seller. (a) The To induce the Company to purchase the Seller Shares, Seller hereby represents and warrants to the Depositor that Company as follows: That all of the Closing Date:
Seller Shares are owned by Seller of record free and clear of all pledges, liens, trusts (constructive and otherwise), options and other encumbrances and adverse claims of every name, nature and description (hereinafter "Liens"); That all consents, approvals, authorizations and orders necessary for (i) The the execution and delivery by Seller is a corporation duly organizedof this Agreement, validly existing and in good standing under (ii) the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conductedperformance of Seller's obligations hereunder, and (iii) the sale and delivery of the Seller Shares to the Company, have been duly obtained; That Seller has the full right, power, authority and capacity (i) to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement;
, (ii) to perform all of Seller's obligations hereunder, and (iii) to sell, assign, transfer and deliver the Seller Shares pursuant to, and in accordance with, this Agreement; That upon delivery of the Seller Shares by Seller to the Company hereunder, the Company will have good and valid title to the Seller Shares, free and clear of all Liens; That this Agreement has been duly executed by Seller and constitutes the Seller's legal, valid and binding obligation, enforceable against Seller in accordance with its terms; and The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have been duly authorized performance by all necessary corporate action on the part Seller of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, his obligations hereunder will conflict with or result in a breach ofnot, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, with the giving of notice to, the registration with, or the taking lapse of time or both, would not result in the creation or imposition of any other action in respect oflien, any stateclaim, federal restriction, charge or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by encumbrance upon the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption AgreementShares.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 2 contracts
Sources: Stock Redemption Agreement (Cross a T Co), Stock Redemption Agreement (Cross a T Co)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing DateT&D that:
(ia) The Seller is a corporation corporation, duly organized, validly existing and in good standing under the laws governing of the State of ________ and is duly qualified to do business in all jurisdictions where such qualification is required or where such qualification is necessary for it to perform its creation and existence and obligations hereunder.
(b) Seller has full corporate power and authority to own its property, to carry on its business as presently now being conducted, and to enter into this Agreement and perform its obligations under this Agreement hereunder. The execution, delivery and the Assignment and Assumption Agreement;
(ii) The execution and delivery by the Seller performance of this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate or other organizational action on the part of the Seller; neither the execution and delivery of this Agreement do not and will not contravene its organizational documents or the Assignment and Assumption Agreementconflict with, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute entitle Seller (with due notice or lapse of time or both) to terminate, accelerate or declare a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree agreement or order binding on the Seller instrument to which it is a party or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) by which it is bound. The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation by Seller will not result in any violation by it of the transactions contemplated hereby and thereby do any law, any order of any court or other agency of government, rule or regulation applicable to it. Seller is not require the consent or approval of, the giving of notice a party to, the registration withnor subject to or bound by, any judgment, injunction or the taking decree of any other action in respect of, any state, federal court or other governmental authority entity which may restrict or agency, except such as has been obtained, given, effected or taken prior to interfere with the date hereof;
(iv) Each performance of this Agreement and by it.
(c) This Agreement is the Assignment and Assumption Agreement has been duly executed and delivered by the Seller andlegal, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller Seller, enforceable against it in accordance with its respective terms, except as such enforceability enforcement may be subject to (A) applicable bankruptcy and insolvency laws and bankruptcy, insolvency, reorganization, fraudulent conveyance, avoidance, preferential transfer, moratorium or other similar laws affecting the enforcement of the now or hereafter in effect relating to creditors' rights of creditors generally and (B) by general principles of equity that may limit the availability of equitable remedies and contractual obligations generally (regardless of whether such enforcement the issue of enforceability is considered in a proceeding in equity or at law; and), and the remedy of specific performance and injunctive relief may be subject to the discretion of the court before which any proceeding therefore may be brought.
(vd) No consent, waiver, order, approval, authorization or order of, or registration, qualification or filing with, any court or other governmental agency or authority is required for the execution, delivery and performance by Seller of this Agreement and the consummation by Seller of the transactions contemplated hereby, except such consents which have been obtained, and as to such consents the same are final, are in full force and effect, and are not subject to any appeal or further judicial or administrative proceedings. No consent or waiver of any party to any contract to which Seller is a party or by which Seller is bound is required for the execution, delivery and performance by Seller of this Agreement.
(e) There are is no actionsaction, suits suit, grievance, arbitration or proceeding (other than proceedings of general applicability to the electrical generation, transmission and distribution industry and proceedings in the ordinary course of business to obtain authorizations, approvals and permits) pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the SellerSeller at law or in equity, before any federal, state, municipal or by any other governmental court, administrative agencydepartment, arbitrator commission, board, arbitrator, bureau, agency or governmental body (A) with respect instrumentality which prohibits or impairs Seller’s ability to execute and deliver this Agreement or to consummate any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreementhereby.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 2 contracts
Sources: Capacity Purchase and Sale Agreement, Demand Resource Capacity Purchase and Sale Agreement
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor Purchaser that as of the Closing Date:
(ia) The Seller has taken all steps necessary to transfer all of the Seller's right, title, and interest in and to the Purchased Assets to the Purchaser.
(b) Immediately prior to the transfers contemplated by this Agreement, the Seller was the sole owner and holder of the Purchased Assets, free and clear of any and all liens, pledges, charges, or security interests of any nature.
(c) The Seller (i) is a corporation duly organized, validly existing existing, and in good standing under the laws governing its creation and existence and of Delaware, (ii) has the full corporate power right, power, and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement and the Assignment Ancillary Agreements and Assumption Agreement;
(ii) The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of to consummate the transactions contemplated hereby and thereby do not require the consent (iii) has obtained all requisite company or approval ofsimilar authorizations, the giving of notice to, the registration withconsents, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior approvals applicable to the date hereof;do so.
(ivd) Each of this This Agreement and the Assignment and Assumption Agreement has Ancillary Agreements have been duly executed and delivered by the Seller andand constitute the legal, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreementvalid, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation obligations of the Seller enforceable against it in accordance with its respective their terms, except as such the enforceability thereof may be subject to (A) limited by any applicable bankruptcy and insolvency laws and other bankruptcy, reorganization, insolvency, moratorium, or similar laws affecting the enforcement of the creditors' rights of creditors generally and (B) by general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; andequity.
(ve) There are no actionsSince September 30, suits or proceedings pending or1999, to the knowledge of the Seller there has not occurred any material adverse change or any threatened material adverse change in the business, operations, properties, assets, or condition (financial or otherwise) of Kafus, other than those disclosed to the public and those disclosed to the Purchaser in writing prior to the date hereof.
(f) To the knowledge of Seller, threatened no action, suit, or likely to be asserted proceeding has been commenced against Kafus before any court or affecting the Sellerarbitrator or any governmental body, before or by any court, administrative agency, arbitrator or governmental body official except for such action, suit, or proceeding that could not reasonably be expected to have a material and adverse effect on the business, operations, properties, assets, or condition (Afinancial or otherwise) of Kafus.
(g) All material information given by the Seller to the Purchaser in connection with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is was true and correct in all material respects at on the date or dates respecting which such information is given;was given and on the date hereof.
(iih) There are no defaults (other than delinquency in payment) in complying with the terms of any MortgageAny approvals, filings, and consents relating to the transfer of the Purchased Assets from the Seller has no notice as to the Purchaser required to be obtained from or made with any taxesgovernmental or quasi-governmental agency, governmental assessmentsentity, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which body from whom approval is required under applicable law have not been paid;made or obtained.
(iiii) Except Assuming that the Purchaser's representations set forth in this Agreement are true and correct, the sale of the Purchased Assets in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on manner contemplated by this Agreement by the related Mortgaged Property to Seller will be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards as are customary in exempt from the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the registration requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register Securities Act by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning reason of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period4(2);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Se Thunderbird Lp), Purchase and Sale Agreement (Enron North America Corp)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement;
(ii) The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xi) and 1.04(b)(xx)1.04(b)(xvi) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xi) and 1.04(b)(xx1.04(b)(xvi) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xi) and 1.04(b)(xx)1.04(b)(xvi) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date(or as of such other date as may be specified in particular representations and warranties), as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s 's cost and expense, and on the Mortgagor’s 's failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor’s 's cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 2 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (Sturctured Asset Securities Corp Mort Pass Thru Ser 2004-1), Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii) and (xiv), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix(xiii) and 1.04(b)(xx(xiv) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the any representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix(xiii) and 1.04(b)(xx)(xiv) by it) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (other than any representations and warranties made by it pursuant to Sections 1.04(b)(xii), (xiii) and (xiv)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on hereunder, as to each that, as of the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ Mae or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each The related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxii) As of the Closing Date, other than with respect to Retained Interest, no Each Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate the time it was made complied in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loanall material respects with applicable local, state and federal laws, including, but not limited to, all applicable predatory and abusive lending laws;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xviixiii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending law;
(xiv) The information set forth in the Prepayment Charge Schedules included as part of the Mortgage Loan Schedules at Schedules A and B (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure);
(c) In addition to the representations and warranties set forth in Section 1.04(b), all of which are also made by the Seller with respect to the Bank Originated Mortgage Loans as of the Cut-off Date, the Seller hereby further represents and warrants to the Depositor upon the delivery to the Depositor on the Closing Date of any Bank Originated Mortgage Loans, but solely as to each Bank Originated Mortgage Loan, that, as of the Closing Date:
(i) With respect to any hazard insurance policy covering 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); no Transferred Bank Originated Mortgage Loan originated on and the related Mortgaged Property, the Seller has not engaged in, and has no knowledge of the Bank’s or after November 27the borrower’s having engaged in, 2003 is any act or omission which would impair the coverage of any such policy, the benefits of the endorsement provided for therein, 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;
(ii) Neither the Seller nor the Bank has waived the performance by the borrower of any action, if the Mortgagor’s failure to perform such action would cause a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Bank Originated Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.be in default, nor has
Appears in 2 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (Lehman Abs Corp Mortgage Pass THR Certs Ser 2003-1), Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp Mort Pas THR Cert Se 04 4xs)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx(xvi)) , shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx(xvi) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the any representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx)(xvi) by it) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (other than any representations and warranties made by it pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv) and (xvi)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on hereunder, as to each that, as of the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ Mae or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each The related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxii) As of Each Transferred Mortgage Loan at the Closing Datetime it was made complied in all material respects with applicable local, other than with respect to Retained Intereststate and federal laws, including, but not limited to, all applicable predatory, abusive and fair lending laws; and, specifically, (a) no Transferred Mortgage Loan provides for interest other than at either (i) secured by a single fixed rate Mortgaged Property located in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 New Jersey is a “High-Cost Home Loan” subject to as defined in the New Jersey Home Ownership Security Act of effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.); (b) no Transferred Mortgage Loan secured by a Mortgaged Property located in New Mexico is a “High-Cost Home Loan” subject to as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.
Appears in 2 contracts
Sources: Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust, Series 2006-8), Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust 2006-11)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Datefollows:
(ia) The Seller is a corporation duly organizedincorporated, validly existing and in good standing under the laws governing of its creation jurisdiction of incorporation, and existence is duly qualified to do business, and has full corporate power and authority to own its propertyis in good standing as a foreign corporation, to carry on in every jurisdiction where the nature of its business as presently conductedrequires it to be so qualified, and unless the failure to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement;so qualify could not reasonably be expected to have a Material Adverse Effect.
(ii) The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iiib) The execution, delivery and performance by the Seller of this Agreement the Transaction Documents to which it is a party, including the Seller’s sale of Receivables hereunder and the Assignment and Assumption Agreement and the consummation Seller’s use of the transactions contemplated hereby proceeds of Purchases, (i) are within the Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate action and thereby (iii) will not (A) violate (1) the Seller’s certificate of incorporation or by-laws, (2) any Law applicable to the Seller, except to the extent such violation could not reasonably be expected to have a Material Adverse Effect or (3) any provision of any material indenture, certificate of designation for preferred stock, agreement or other instrument to which the Seller is a party or by which it or any of its property is or may be bound or (B) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under, give rise to a right of or result in any cancellation of any right or acceleration of any payment obligations under any such material indenture, certificate of designation for preferred stock, agreement or other instrument and (iv) do not result in or require the consent creation of any Adverse Claim upon or with respect to any of its properties (except as created pursuant to the Transaction Documents).
(c) No authorization or approval ofor other action by, the giving of and no notice to, the registration to or filing with, any Official Body is required for the due execution, delivery and performance by the Seller of the Transaction Documents to which it is a party or the taking of any other action in respect of, any state, federal or other governmental authority or agencydocument to be delivered by it thereunder, except such as has for (i) the filing of the financing statements referred to in Section 4.1 of the Receivables Transfer Agreement (which financing statements shall have been obtained, given, effected or taken delivered to the Administrative Agent prior to the date hereof;Restatement Effective Date) and (ii) such as have been obtained or made and are in full force and effect.
(ivd) Each of this Agreement and the Assignment and Assumption Agreement Transaction Documents to which the Seller is a party has been duly executed and delivered by the Seller andand constitutes the legal, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it the Seller in accordance with its respective terms, except as such enforceability may be subject to (Ai) applicable bankruptcy and insolvency laws and the effects of bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting the enforcement of the creditors’ rights of creditors generally and generally, (Bii) general principles of equity (regardless of whether such enforcement enforceability is considered in a proceeding in equity or at law; and) and (iii) implied covenants of good faith and fair dealing.
(ve) There Since December 31, 2006, no Material Adverse Effect has occurred.
(f) Except as set forth on Schedule II, (i) as of the initial Purchase Date, there are no actions, suits or proceedings at law or in equity or by or before any Official Body or in arbitration now pending or, to the actual knowledge of a Responsible Officer of the Seller, threatened or likely to be asserted in writing against or affecting the Seller, before Seller or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations property or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement rights and (ii) as of each Reporting Date, there are no actions, suits or proceedings at law or in equity or by or before any Official Body or in arbitration or, to the actual knowledge of a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations Responsible Officer of the Seller. The Depositor acknowledges and agrees that the representations and warranties of , threatened in writing against or affecting the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant or any of its business, property or rights, which could reasonably be expected to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do nothave, individually or in the aggregate, materially interfere with a Material Adverse Effect.
(g) No proceeds of any Purchase will be used to purchase or carry, or to extend credit to others for the benefits purpose of purchasing or carrying, “margin stock” within the meaning of Regulation T, U or X promulgated by the Board of Governors of the security intended Federal Reserve System from time to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;time.
(vih) No transaction contemplated hereby requires compliance with any bulk sales act or similar law.
(i) Immediately prior to each Purchase of Receivables from the transfer and assignment of the Transferred Mortgage Loans to the DepositorSeller hereunder, the Seller was will be the sole owner of such Receivables and all Receivables Property with respect thereto, free and clear of any Adverse Claim. Upon each Purchase, the Buyer shall have acquired a valid and perfected ownership interest in each Receivable now existing or hereafter arising and in the Receivables Property with respect thereto, in each case free and clear of any Adverse Claim (other than Adverse Claims created by the Buyer or its assigns).
(j) Each report delivered pursuant to Section 2.11 of the Receivables Transfer Agreement (if prepared by the Seller or any of its Affiliates, or to the extent that information contained therein is supplied by the Seller or an Affiliate), information, exhibit, document, book, record or report furnished in writing at any time by or on behalf of the Seller in connection with the Transaction Documents is accurate in all material respects as of its date or (except as otherwise disclosed to the Buyer at such time) as of the date so furnished.
(k) The Seller is located in its jurisdiction of incorporation or organization specified in Exhibit C for the purposes of Section 9-307 of the UCC as in effect in the State of New York.
(l) The names and holder addresses of each Transferred Mortgage Loanall the Lock-Box Banks, together with the account numbers of the Lock-Box Accounts, are as specified in Exhibit A (as the same may be updated from time to time pursuant to Section 5.01(g)).
(m) In the past five (5) years, the Seller has not used any corporate name, tradename or doing-business-as name other than the name in which it has executed this Agreement and the other names listed on Exhibit C. The Seller’s Federal Employer Identification Number and, if organized in a jurisdiction other than Delaware, its organizational identification number is as set forth on Exhibit C.
(n) The Seller had good is not an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.
(i) The fair value of the assets of the Seller, at a fair valuation, exceed the debts and marketable title theretoliabilities, direct, subordinated, contingent or otherwise, of the Seller; (ii) the present fair saleable value of the property of the Seller is greater than the amount that will be required to pay the probable liability of the Seller on its debts and has full right other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (iii) the Seller will be able to transfer pay its debts and sell each Transferred Mortgage Loan liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) the Seller does not have unreasonably small capital with which to conduct the businesses in which it is engaged as such businesses are now conducted and are proposed to be conducted following the Restatement Effective Date.
(p) Each Receivable treated as or represented by the Seller to be an Eligible Receivable as of any Purchase Date was an Eligible Receivable on such date.
(q) All Obligors with respect to Receivables sold by the Seller hereunder have been instructed to remit all their payments in respect of Receivables directly to a Lock-Box Account.
(r) The transfers of Receivables by the Seller to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan Buyer pursuant to this Agreement;, and all other transactions between the Seller and the Buyer, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Seller.
(viis) Each Transferred Mortgage Loan The Seller and its ERISA Affiliates are in compliance with the applicable provisions of ERISA and the provisions of the Code relating to Plans and the regulations and published interpretations thereunder and any similar applicable non U.S. law, except for such noncompliance that could not reasonably be expected to have a Material Adverse Effect. No Reportable Event has occurred during the past five years as to which the Seller or any ERISA Affiliate was required to file a report with the Pension Benefit Guaranty Corporation, other than reports that have been filed and reports the failure of which to file could not reasonably be expected to have a Material Adverse Effect. As of the Restatement Effective Date, the present value of all benefit liabilities under each Plan of the Seller and the ERISA Affiliates (based on those assumptions used to fund such Plan), did not as of the last annual valuation date applicable thereto for which a valuation is available, exceed the value of the assets of such Plan by an amount that could reasonably be expected to have a Material Adverse Effect and the present value of all benefit liabilities of all underfunded Plans (on a termination basis and based on those assumptions used to fund each such Plan), did not as of the last annual valuation dates applicable thereto for which valuations are available, exceed the value of the assets of all such underfunded Plans by an amount that could reasonably be expected to have a Material Adverse Effect. None of the Seller and the ERISA Affiliates has incurred or could reasonably be expected to incur any Cooperative Loan Withdrawal Liability that could reasonably be expected to have a Material Adverse Effect. None of the Seller and the ERISA Affiliates has received any written notification that any Multiemployer Plan is covered in reorganization or has been terminated within the meaning of Title IV of ERISA, or has knowledge that any Multiemployer Plan is reasonably expected to be in reorganization or to be terminated, where such reorganization or termination has had or could reasonably be expected to have, through increases in the contributions required to be made to such Plan or otherwise, a Material Adverse Effect.
(t) No event has occurred and is continuing and no condition exists which constitutes a Termination Event.
(u) Except as set forth on Schedule III, the Seller has filed or caused to be filed all material tax returns and has paid or caused to be paid or made adequate provision for all material taxes due and payable by either it and all material assessments received by it except to the extent that non-payment: (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans being contested in the locality where the related Mortgaged Property is located good faith; or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by could not reasonably be expected to result in a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph Material Adverse Effect.
(v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then The assignment of each Receivable and the related Title Insurance Policy contains an endorsement insuring Receivables Property the validity subject of any Purchase on the related Purchase Date and the fulfillment of the creation terms hereof will not violate any applicable Law or any material contractual obligation by which the Seller or any of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loanits property may be bound.
(ixw) There The Seller has performed and complied in all respects with the terms of the Contract relating to each Purchased Receivable that is no proceeding pending for treated as or represented by the total Seller or partial condemnation any of any Mortgaged Property (orits Affiliates to be an Eligible Receivable, in except to the case of any Cooperative Loan, the related cooperative unit) and each extent that such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as failure to comply could not reasonably be expected to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;Material Adverse Effect.
(x) There are no mechanics’ or similar liens or claims which The Seller and the Collection Agent have the capability: (i) at any given time to identify each individual Purchased Receivable and (ii) to track Collections in respect of each such Receivable and each of the Receivables that have been filed for work, labor or material (and no rights are outstanding that under will be sold by the law could give rise Seller 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;Buyer in accordance herewith.
(xiy) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred Mortgage Loan at the time it was made The Seller has complied in all material respects with applicable local, state, its Credit and federal laws including, but not limited to, all applicable predatory and abusive lending laws;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without Collection Policy in regard to Treas. Reg. §1.860G-2(f) each Purchased Receivable that is treated as or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, represented by the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seqbe an Eligible Receivable.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Nalco Holding CO), Receivables Purchase Agreement (Nalco Finance Holdings LLC)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx(xvi)) , shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx(xvi) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the any representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx)(xvi) by it) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (other than any representations and warranties made by it pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv) and (xvi)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on hereunder, as to each that, as of the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ Mae or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each The related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxii) As of the Closing Date, other than with respect to Retained Interest, no Each Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate the time it was made complied in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loanall material respects with applicable local, state and federal laws, including, but not limited to, all applicable predatory and abusive lending laws;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xviixiii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” High Cost Loan or “predatory” Covered Loan, as applicable (as such terms are defined in the then current Standard & Poor's LEVELS® Glossary which is now Version 5.6b Revised, Appendix E) and no mortgage loan under originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act;
(xiv) No Transferred Mortgage Loan was originated (or modified) on or after February 1, 2002 and before March 7, 2003 which is secured by a mortgaged property located in Georgia;
(xv) No Transferred Mortgage Loan that is secured by property located in Illinois is in violation of the provisions of the Illinois Interest Act (815 Ill. Comp. Stat. 205/1 et seq.);
(xvi) No Transferred Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law; and
(xvii) The information set forth in the Prepayment Charge Schedules included as part of the Mortgage Loan Schedules at Schedules A and B (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state or and local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject except to the New Jersey Home Ownership Security Act of 2003 extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure).
(N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject c) In addition to the New Mexico Home Loan Protection Act representations and warranties set forth in Section 1.04(b), all of which are also made by the Seller with respect to the Bank Originated Mortgage Loans as of the Cut-off Date, the Seller hereby further represents and warrants to the Depositor upon the delivery to the Depositor on the Closing Date of any Bank Originated Mortgage Loans, but solely as to each Bank Originated Mortgage Loan, that, as of the Closing Date:
(N.M.i) With respect to any hazard insurance policy covering a Bank Originated Mortga
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp Trust 2005-4xs)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each the Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a the Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii), (xviii) and 1.04(b)(xx(xix)) ), shall be the right to enforce the obligations of such the Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii), (xviii) and 1.04(b)(xx(xix) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii), (xviii) and 1.04(b)(xx(xix)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii), (xiv), (xv), (xvi), (xvii), (xviii) and (xix)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such the Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such the Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ Mae or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each In the case of approximately 96.56% and 3.44% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien or second lien, respectively, on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) the first Mortgage, in the case of a Mortgaged Property that is secured by a perfected second lien, (2) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (23) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (34) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any In the case of approximately 96.56% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(x) [Reserved]
(xi) Each Transferred Mortgage Loan was originated by will have a savings and loan association, savings bank, commercial bank, credit union, insurance company CLTV of 100% 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 less as of the National Housing ActClosing Date;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxiii) As of Each Transferred Mortgage Loan at the Closing Datetime it was made complied in all material respects with applicable local, other than with respect to Retained Intereststate and federal laws, including, but not limited to, all applicable predatory, abusive and fair lending laws; and, specifically, (a) no Transferred Mortgage Loan provides for interest other than at either (i) secured by a single fixed rate Mortgaged Property located in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 New Jersey is a “High-Cost Home Loan” subject to as defined in the New Jersey Home Ownership Security Act of effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.); (b) no Transferred Mortgage Loan secured by a Mortgaged Property located in New Mexico is a “High-Cost Home Loan” subject to as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Sasco 2006-Bc4)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement and this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each the Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such the Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a the Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xiii) through (xvii)), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such the Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xiii) and 1.04(b)(xxthrough (xvii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xiii) and 1.04(b)(xxthrough (xvii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii) through (xvii)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such the Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such the Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. Fan▇▇▇ ▇▇e ▇▇ Fre▇▇▇▇ ▇▇c. If upon origination of a Transferred the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each In the case of all of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred such Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any In the case of all of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(x) [Reserved];
(xi) Each Transferred Mortgage Loan was originated by will have a savings and loan association, savings bank, commercial bank, credit union, insurance company LTV of 100% 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 less as of the National Housing ActClosing Date;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 1.860G-2;
(determined without regard to Treas. Reg. §1.860G-2(fxiii) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)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;
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred No Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Datethen current Standard & Poor’s LEVELS® Glossary, based on delinquencies in payment on the Transferred Mortgage Loanswhich is now Version 5.7, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Appendix E. In addition, no Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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);
(xv) No Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law;
(xvi) The information set forth in the Prepayment Charge Schedule, included as part of the Mortgage Loan Schedule at Schedule A hereto (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure);
(xvii) No Mortgage Loan was originated (or modified) on or after October 1, 2002 through March 6, 2003 which is secured by a mortgaged property located in Georgia; no and
(xviii) In addition to the foregoing representations and warranties made in subparagraphs (i) through (xvii) of this Section 1.04(b), the Seller further represents and warrants upon delivery of the Mortgage Loans to be included in Pool 1 (the “Pool 1 Transferred Mortgage Loans”), as to each such Mortgage Loan, that:
(a) The outstanding Scheduled Principal Balance of each Pool 1 Transferred Mortgage Loan originated on does not exceed the applicable maximum original loan amount limitations with respect to first lien or after November 27subordinate lien one-to-four family residential mortgage loans, 2003 is a “High-Cost Home Loan” subject as applicable, as set forth in the Fre▇▇▇▇ ▇▇c Selling Guide;
(b) With respect to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no any Pool 1 Transferred Mortgage Loan that is a “Highsubordinate lien mortgage loan, (i) such lien is on a one- to four-Cost Home Loan” subject to family residence that is the New Mexico Home Loan Protection Act principal residence of the borrower; (N.M.ii) the original principal balance does not exceed the applicable limitati
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (First Franklin Mortgage Loan Trust 2006-Ffa)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii) and (xiv), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix(xiii) and 1.04(b)(xx(xiv) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the any representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix(xiii) and 1.04(b)(xx)(xiv) by it) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (other than any representations and warranties made by it pursuant to Sections 1.04(b)(xii), (xiii) and (xiv)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on hereunder, as to each that, as of the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA Fannie Mae or FHLMCFreddie Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the ▇▇ ▇▇▇ Federal Emergency ▇▇▇▇▇▇ncy Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each The related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxii) As of the Closing Date, other than with respect to Retained Interest, no Each Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate the time it was made complied in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loanall material respects with applicable local, state and federal laws, including, but not limited to, all applicable predatory and abusive lending laws;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xviixiii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending law;
(xiv) The information set forth in the Prepayment Charge Schedules included as part of the Mortgage Loan Schedules at Schedules A and B (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure);
(c) In addition to the representations and warranties set forth in Section 1.04(b), all of which are also made by the Seller with respect to the Bank Originated Mortgage Loans as of the Cut-off Date, the Seller hereby further represents and warrants to the Depositor upon the delivery to the Depositor on the Closing Date of any Bank Originated Mortgage Loans, but solely as to each Bank Originated Mortgage Loan, that, as of the Closing Date:
(i) With respect to any hazard insurance policy covering 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); no Transferred Bank Originated Mortgage Loan originated on and the related Mortgaged Property, the Seller has not engaged in, and has no knowledge of the Bank’s or after November 27the borrower’s having engaged in, 2003 is any act or omission which would impair the coverage of any such policy, the benefits of the endorsement provided for therein, 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;
(ii) Neither the Seller nor the Bank has waived the performance by the borrower of any action, if the Mortgagor’s failure to perform such action would cause a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Bank Originated Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.be in default, nor has
Appears in 1 contract
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xii)¸(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvii) and 1.04(b)(xx(xviii)) , shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv), (xvii) and 1.04(b)(xx(xviii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the those representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv), (xvii) and 1.04(b)(xx(xviii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representation and warranties made by it pursuant to 1.04(b)(xii), (xiii), (xiv), (xv), (xvii) and (xviii)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ Mae or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a Transferred the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred such Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, with a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxii) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Each Mortgage Loan, at the time it was originated, complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable local, state and federal predatory and abusive lending laws;
(xvxiii) As of the Closing Date, no Transferred No Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Datethen current Standard & Poor’s LEVELS® Glossary. In addition, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred no Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home,” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred ;
(xiv) No Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law;
(xv) No Mortgage Loan was originated (or modified) on or after November 27May 1, 2002 and before May 7, 2003 which is secured by a “High-Cost Home Loan” subject mortgaged property located in Georgia;
(xvi) [Reserved]; and
(xvii) The information set forth in the Prepayment Charge Schedules included as part of the Mortgage Loan Schedules at Schedules A and B (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the New Jersey Home Ownership Security Act extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure).
(c) [Reserved]
(d) With respect to any of 2003 the foregoing representations and warranties made in subparagraphs (N.J.S.A. 46:10B-22 et seq.xii); no Transferred , (xiii), (xiv), (xv), (xvii) and (xviii) of Section 1.04(b), a breach of any such representations or warranties shall be deemed to materially and adversely affect the value of the affected Mortgage Loan and the interests of Certificateholders therein, irrespective of the Seller’s knowledge of such breach. It is understood and agreed that the representations and warranties set forth in Sections 1.04(b) herein shall survive the Closing Date. Upon discovery by either the Seller or the Depositor of a “High-Cost Home Loan” subject to breach of any of the New Mexico Home Loan Protection Act (N.M.foregoing representations a
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Lehman Mortgage Trust 2006-3)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each the Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a the Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii) and 1.04(b)(xx(xix)) ), shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii) and 1.04(b)(xx(xix) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii) and 1.04(b)(xx(xix)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii), (xiv), (xv), (xvi), (xvii) and (xix)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ Mae or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a Transferred the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each In the case of approximately 97.42% and 2.58% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien or second lien, respectively, on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) the first Mortgage, in the case of a Mortgaged Property that is secured by a perfected second lien, (2) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (23) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred such Mortgage Loan, and (34) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any In the case of approximately 97.42% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company or similar institution that is supervised and examined by a Federal federal or State state authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As will have a CLTV of 100% or less as of the Closing Date, each Transferred ;
(xii) Each Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 1.860G-2;
(determined without regard to Treas. Reg. §1.860G-2(fxiii) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)Each Mortgage Loan at the time it was originated complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable predatory and abusive lending laws;
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred No Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing DateStandard & Poor’s LEVELSâ Glossary, based on delinquencies Version 5.6 Revised, Appendix E, in payment effect on the Transferred Mortgage Loansdate hereof. In addition, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred no Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home,” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred ;
(xv) No Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law;
(xvi) The information set forth in the Prepayment Charge Schedules, included as part of the Mortgage Loan Schedule at Schedule A hereto (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure);
(xvii) No Mortgage Loan was originated (or modified) on or after November 27October 1, 2002 through March 6, 2003 which is secured by a “High-Cost Home Loan” subject mortgaged property located in Georgia;
(xviii) [Reserved]
(xix) In addition to the New Jersey Home Ownership Security Act foregoing representations and warranties made in subparagraphs (i) through (xvii) of 2003 this Section 1.04(b), the Seller further represents and warrants upon delivery of the Pool 1 Mortgage Loans, as to each, that:
(N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.a
Appears in 1 contract
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xi), 1.04(b)(xvii(xii), 1.04(b)(xviii(xiii), 1.04(b)(xix(xiv), (xv) and 1.04(b)(xx(xvii)) ), shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xi)¸(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx(xvii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the those representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xi)¸(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx(xvii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to 1.04(b)(xi)¸(xii), (xiii), (xiv), (xv) and (xvii)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ ▇▇▇ or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, with a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxii) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Each Transferred Mortgage Loan, at the time it was originated, complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable local, state and federal predatory and abusive lending laws;
(xvxiii) As of the Closing Date, no No Transferred Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Datethen current Standard & Poor’s LEVELS® Glossary. In addition, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No no Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home,” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no ;
(xiv) No Transferred Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law;
(xv) There is no Mortgage Loan in the Trust Fund that was originated on or after November 27October 1, 2003 2002 through March 6, 2003, which is a “High-Cost Home Loanhigh cost home loan” subject as defined under the Georgia Fair Lending Act;
(xvi) [Reserved]; and
(xvii) The information set forth in the Prepayment Charge Schedules included as part of the Mortgage Loan Schedules at Schedules A and B (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the New Jersey Home Ownership Security Act of 2003 extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure).
(N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject c) In addition to the New Mexico representations and warranties set forth in Section 1.04(b), all of which are also made by the Seller with respect to the Bank Originated Mortgage Loans, the American Home Loan Protection Act (N.M.Mortgage Loans and the Flagstar Bank Mortgage Loans as of the Closing Date, the Seller hereby further represents and warrants to the Depositor upon the delivery to t
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Lehman Mortgage Trust 2008-2)
Representations and Warranties of the Seller. (a) The Seller hereby represents makes the following representations and warrants warranties on which (i) the Issuer is deemed to have relied in acquiring the Depositor that Contracts and (ii) the Insurer is deemed to have relied in issuing the Policy; provided such representations and warranties speak as of the execution and delivery of this Agreement and as of the Closing DateDate with respect to Sections 2.02(a), (b) and (c), and as of each Prefunding Transfer Date (with respect to the Prefunded Contracts conveyed to the Trust on such date) with respect to Sections 2.02(a) and (d), but shall survive the sale, transfer and assignment of the Contracts to the Issuer and the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) As to the Seller:
(i) The Seller is duly organized and validly existing as a corporation duly organized, validly organized and existing and in good standing under the laws governing its creation and existence and has full corporate of the State of Delaware, with power and authority to own its property, properties and to carry on conduct its business as presently conductedand had at all relevant times, and has, power, authority, and legal right to enter into originate or acquire and perform its obligations under this Agreement and own the Assignment and Assumption Agreement;Contracts.
(ii) The execution Seller is duly qualified to do business as a foreign corporation in good standing, and delivery shall have obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications.
(iii) The Seller has the power and authority to execute and deliver this Agreement and to carry out its terms; the Seller has full power and authority to sell and assign the property to be sold and assigned to and deposited with the Issuer and has duly authorized such sale and assignment to the Issuer by all necessary corporate action; and the execution, delivery, and performance of this Agreement has been duly authorized by the Seller by all necessary corporate action.
(iv) This Agreement constitutes (A) a valid sale, transfer, and assignment of the Contracts, enforceable against creditors of and purchasers from the Seller and (B) a legal, valid, and binding obligation of the Seller enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or at law.
(v) The consummation of the transactions contemplated by this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part fulfillment of the Seller; neither terms hereof shall not conflict with, result in any breach of any of the execution terms and delivery of this Agreement or the Assignment and Assumption Agreementprovisions of, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict constitute (with or result in a breach of, without notice or constitute lapse of time) a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
, or any indenture, agreement, or other instrument to which the Seller is a party or by which it shall be bound; nor result in the creation or imposition of any Lien upon any of the properties of the Seller pursuant to the terms of any such indenture, agreement, or other instrument (iii) The executionother than pursuant to the Basic Documents to which the Seller is a party); nor violate any law or any order, delivery and performance by rule, or regulation applicable to the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent any court or approval of, the giving of notice to, the registration with, or the taking of any other action in respect offederal or state regulatory body, any stateadministrative agency, federal or other governmental authority instrumentality having jurisdiction over the Seller or its properties.
(vi) To the Seller's best knowledge after due inquiry, there are no proceedings or investigations pending, or threatened, before any court, regulatory body, administrative agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by other governmental instrumentality having jurisdiction over the Seller and, assuming due authorization, execution and delivery by or its properties: (A) asserting the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case invalidity of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective termsNotes, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, seeking to prevent the knowledge issuance of the Seller, threatened Notes or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to consummation of any of the transactions contemplated by this Agreement Agreement, (C) seeking any determination or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller ruling that might materially and adversely affect it or the performance by the Seller of its business, assets, operations or condition, financial or otherwiseobligations under, or the validity or enforceability of, this Agreement, the Notes, or (D) naming the Seller which might adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreementfederal income tax attributes of the Notes.
(b) The representations and warranties of As to each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made Funded Contract (except as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are noted below as being applicable only to facts, conditions either Precomputed Contracts or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:Simple Interest Contracts):
(i) The information pertaining to such Contract set forth with respect to in the Transferred Mortgage Loans on the Mortgage Loan related Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is Contracts was true and correct in all material respects at the date or dates respecting which such information is given;Closing Date.
(ii) There are no defaults As of the Closing Date, such Contract was secured by a valid and enforceable first priority security interest in favor of Onyx in the related Financed Vehicle, and such security interest has been duly perfected and is prior to all other liens upon and security interests in such Financed Vehicle which now exist or may hereafter arise or be created (other than delinquency except, as to priority, for any lien for unpaid taxes or unpaid storage or repair charges which may arise after the Closing Date in payment) in complying accordance with the terms of any MortgageUCC); such security interest is assignable, and had been assigned by Onyx to the Seller pursuant to the Purchase Agreement, and, as of the Closing Date, has no notice as been assigned by the Seller to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;the Issuer pursuant to Section 2.01(a) hereof.
(iiiA) Except If the related Contract was originated in a state in which notation of a security interest on the Title Document (or in the case of Cooperative Loanselectronic title records) is required or permitted to perfect the security interest in the related Financed Vehicle, the Title Document or the electronic title records for such Financed Vehicle shows, or, if anya new or replacement Title Document is being applied for with respect to such Financed Vehicle, each Mortgage requires all buildings or other improvements on the Title Document will be received within 180 days of the Closing Date and will show, Onyx named as the original secured party under the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards Contract as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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 a first priority security interest in such insurance at such Mortgagor’s cost and expenseFinanced Vehicle, and (B) if the related Contract was originated in a state in which the filing of a financing statement under the UCC is required to seek reimbursement therefor perfect a security interest in motor vehicles, such filings or recordings have been duly made and show Onyx named as the original secured party under the related Contract, and in either case, the Indenture Trustee on behalf of the Noteholders and the Insurer has the same rights as such secured party has or would have (if such secured party were still the owner of such Contract) against all parties claiming an interest in such Financed Vehicle. With respect to each Contract for which the Title Document has not yet been returned from the Mortgagor. Where required by state law Registrar of Titles (or regulationevidenced in the electronic title records), each Mortgagor Onyx has written evidence that such Title Documents showing Onyx as first lienholder have 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;applied for.
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien As of the MortgageClosing Date, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, to and has full right was the sole owner of each such Contract to transfer and sell each Transferred Mortgage Loan be transferred to the Depositor Issuer pursuant to Section 2.01 free of liens, claims, encumbrances and clearrights of others and, except as described upon transfer of such Contract to the Issuer pursuant to Section 2.01, the Issuer will have good and marketable title to, will have a first priority perfected security interest in paragraph and will be the sole owner of such Contract free of liens, encumbrances and rights of others.
(v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder As of the related MortgageCut-Off Date, including the Sellermost recent scheduled payment due on each such Contract had been made or was not delinquent more than 30 days and, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To to the best of the Seller’s 's knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loanall payments on the Contract were made by the related Obligors.
(ixvi) There As of the Closing Date, there is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, lien against the related cooperative unitFinanced Vehicle for delinquent taxes.
(vii) and each such property As of the Closing Date, there is undamaged by wasteno right of rescission, fireoffset, earthquake defense or earth movement, windstorm, flood, tornado or other casualty, so as counterclaim to have a material adverse effect on the value obligation of the related Mortgaged Property as security for Obligor(s) to pay the related Transferred Mortgage Loan unpaid principal or interest due under such Contract; the operation of the terms of such Contract or the use for which exercise of any right thereunder will not render such Contract unenforceable in whole or in part or subject such Contract to any right of rescission, offset, defense or counterclaim, and the premises were intended;Seller has no knowledge that such right of rescission, offset, defense or counterclaim has been asserted or threatened.
(xviii) There As of the Closing Date, to the best of the Seller's knowledge, there are no mechanics’ or similar liens or claims which have been filed filed, including liens for work, labor labor, material, storage or material (and no rights are outstanding that under the law could give rise to such liens) unpaid taxes affecting the related Mortgaged Property Financed Vehicle which are or may be liens become a lien prior to, or equal or coordinate with, the lien security interest granted by such Contract.
(ix) Such Contract, and the sale of the related Mortgage;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan associationFinanced Vehicle sold thereunder, savings bankcomplied, commercial bank, credit union, 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;
(xii) Each Transferred Mortgage Loan at the time it was made complied made, in all material respects with all applicable localfederal, statestate and local laws (and regulations thereunder), including without limitation usury, equal credit opportunity, fair credit reporting, truth-in-lending or other similar laws, the Federal Trade Commission Act, the Fair Debt Collection Practices Act, the Fair Credit Billing Act, the Magn▇▇▇▇-▇▇▇▇ ▇▇▇ranty Act, the Federal Reserve Board's Regulations B and Z, the Soldiers' and Sailors' Civil Relief Act of 1940, state adoptions of the National Consumer Act and the Uniform Consumer Credit Code, and federal other applicable state laws regulating retail installment sales contracts and loans in general and motor vehicle retail installment contracts and loans in particular; and the consummation of the transactions herein contemplated, including, but without limitation, the transfer of ownership of such Contracts to the Issuer and the receipt of interest by the Noteholders, will not violate any applicable federal, state or local law.
(x) Such Contract is the legal, valid and binding obligation of the related Obligor(s) thereunder and is enforceable in accordance with its terms, except only as such enforcement may be limited toby bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally; each party to such Contract had full legal capacity to execute and deliver such Contract and all applicable predatory other documents related thereto and abusive lending laws;to grant the security interest purported to be granted thereby; the terms of such Contract have not been waived, amended or modified in any respect, except by instruments that are part of the related Contract Documents, and no such waiver, amendment or modification has caused such Contract to fail to meet all of the representations, warranties and conditions, set forth herein with respect thereto.
(xi) Such Contract contains customary and enforceable provisions such as to render the rights and remedies of the holder or assignee thereof adequate for the practical realization against the collateral of the benefits of the security, subject, as to enforceability, to bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors' rights generally.
(xii) As of the Closing Date, (a) there was no default, breach, violation or event permitting acceleration existing under such Contract (except payment delinquencies permitted by subparagraph (v) above), (b) there does not exist any continuing condition that with notice or lapse of time would constitute a default, breach, violation or event permitting acceleration existing under such Contract, and (c) the Seller has not waived any such default, breach, violation or event permitting acceleration except payment delinquencies permitted by subparagraph (v) above.
(xiii) As of the Closing Date, Date each Transferred Mortgage Loan is a “qualified mortgage” within related Financed Vehicle will be covered by the meaning Blanket Insurance Policy; each of Section 860G Onyx and the Seller shall at all times comply with all of the Code and Treas. Reg. §1.860G-2 (determined without regard provisions of such insurance policy applicable to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation it so long as such insurance policy is a qualified mortgage for a temporary period);in effect.
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides (a) such Contract will require that the related Obligor(s) obtain and maintain in effect for interest other than at either the related Financed Vehicle a comprehensive and collision insurance policy (i) a single fixed rate in effect throughout an amount at least equal to the term lesser of (x) its maximum insurable value or (y) the Transferred Mortgage Loan or principal amount due from the related Obligor(s) under such Contract, (ii) naming Onyx as a loss payee and (iii) insuring against loss and damage due to fire, theft, transportation, collision and other risks generally covered by comprehensive and collision coverage and (b) the Servicer shall have put in place a vendor's single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term interest insurance policy providing coverage upon repossession of the Transferred Mortgage Loan;related Financed Vehicle in an amount equal to the lesser of the actual cash value of such Financed Vehicle, the cost of repair or replacement for such Financed Vehicle and the unpaid balance of the related Contract. Each of Onyx and the Seller shall at all times comply with all of the provisions of such insurance policies applicable to it.
(xv) Such Contract was acquired by Onyx from a Dealer with which it ordinarily does business, and no adverse selection procedures have been utilized in selecting such Contract from all other similar contracts purchased or originated by Onyx or any subsidiary.
(xvi) Payments under such Contract have been applied in accordance with the Rule of 78's Method, the Actuarial Method or the Simple Interest Method, as provided in the applicable Contract, and are due monthly in substantially equal amounts through its Maturity Date sufficient to fully amortize the principal balance of such Contract by its Maturity Date.
(xvii) There is only one original of such Contract and such original, together with all other related Contract Documents, is being held by the Custodian.
(xviii) As of the Closing Date, no Transferred Mortgage Loan the Servicer has clearly marked its electronic records to indicate that such Contract is owned by the subject of pending or final foreclosure proceedings;Issuer.
(xvixix) At the date of origination of the Contract, the original principal balance of such Contract was not greater than the purchase price to the related Obligor(s) (including taxes, warranties, licenses and related charges) of the related Financed Vehicle.
(xx) As of the Closing related Cut-Off Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would has not initiate foreclosure proceedings received notice that any Obligor under such Contract has filed for bankruptcy.
(xxi) Such Contract had an original maturity of not more than 72 months and as of the related Cut-Off Date, such Contract has a remaining maturity of 72 months or less;
(xxii) The first scheduled monthly payment for at least 80% of the Initial Contracts (by Outstanding Principal Balance) is due on or before May 31, 2001, and the first scheduled monthly payment for at least 90% of the Subsequent Contracts (by Outstanding Principal Balance) is due on or before June 30, 2001.
(xxiii) As of the related Cut-Off Date, such Contract has a remaining principal balance of at least $500.
(xxiv) As of the related Cut-Off Date, such Contract is secured by a Financed Vehicle that has not been repossessed without reinstatement.
(xxv) The related Obligor(s) were located in Alabama, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, Washington or West Virginia on the date of origination of such Contract.
(xxvi) The Obligor on such Contract is either (a) a natural person residing in any state or (b) another entity, provided that a natural person is a joint and several Obligor with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;Contract.
(xviic) No Transferred Mortgage Loan As to all of the Funded Contracts:
(i) The aggregate Outstanding Principal Balance payable by Obligors of the Funded Contracts as of the related Cut-Off Date plus the initial deposit into the Prefunding Account equals the Original Pool Balance.
(ii) As of the related Cut-Off Date, approximately 21.56% of the Outstanding Principal Balance of all Funded Contracts is a “highattributable to loans involving new Financed Vehicles, and approximately 78.44% of the Outstanding Principal Balance of all Funded Contracts is attributable to loans involving used Financed Vehicles.
(iii) As of the related Cut-cost,” “high-cost home,” “covered,” “high-risk home” Off Date, the aggregate Outstanding Principal Balance of all Funded Contracts originated in any single state, other than California, did not equal or “predatory” loan under any exceed 10%.
(d) As to each Prefunded Contract (except as noted below as being applicable federalonly to either Precomputed Contracts or Simple Interest Contracts), state or local predatory or abusive lending law as of the related Prefunding Transfer Date (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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject except as otherwise noted):
(i) The information pertaining to such Contract set forth in the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.related Transfer C
Appears in 1 contract
Sources: Sale and Servicing Agreement (Onyx Acceptance Financial Corp)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii), (xviii) and 1.04(b)(xx(xix)) ), shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii), (xviii) and 1.04(b)(xx(xix) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii), (xviii) and 1.04(b)(xx(xix)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii), (xiv), (xv), (xvi), (xvii), (xviii) and (xix)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ Mae or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each In the case of approximately 95.97% and 4.03% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien or second lien, respectively, on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) the first Mortgage, in the case of a Mortgaged Property that is secured by a perfected second lien, (2) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (23) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (34) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any In the case of approximately 95.97% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(x) [Reserved]
(xi) Each Transferred Mortgage Loan was originated by will have a savings and loan association, savings bank, commercial bank, credit union, insurance company CLTV of 100% 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 less as of the National Housing ActClosing Date;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxiii) As of Each Transferred Mortgage Loan at the Closing Datetime it was made complied in all material respects with applicable local, other than with respect to Retained Intereststate and federal laws, including, but not limited to, all applicable predatory, abusive and fair lending laws; and, specifically, (a) no Transferred Mortgage Loan provides for interest other than at either (i) secured by a single fixed rate Mortgaged Property located in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 New Jersey is a “High-Cost Home Loan” subject to as defined in the New Jersey Home Ownership Security Act of effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.); (b) no Transferred Mortgage Loan secured by a Mortgaged Property located in New Mexico is a “High-Cost Home Loan” subject to as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Sasco 2006-Bc3)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that Purchaser as of the Closing DateDate (or if otherwise specified below, as of the date so specified) that:
(a) with respect to the Seller:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and of the State of Wyoming;
(ii) the Seller has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement;
(iiiii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; and neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplatedcontemplated hereby, nor compliance with the provisions hereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws by-laws of the Seller, except those conflicts, breaches or defaults which would not reasonably be expected to have a material adverse effect on the Seller's ability to enter into this Agreement and to consummate the transactions contemplated hereby;
(iiiiv) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such those consents, approvals, notices, registrations or other actions as has have already been obtained, givengiven or made and, effected in connection with the recordation of the Mortgages, powers of attorney or taken prior to the date hereofassignments of Mortgages not yet completed;
(ivv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this AgreementPurchaser, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be terms (subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; andgenerally);
(vvi) There there are no actions, litigation, suits or proceedings pending or, to or threatened against the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, Seller before or by any court, administrative agency, arbitrator or governmental body (Ai) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (Bii) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller would reasonably be expected to materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its the Seller's ability to perform its obligations under this Agreement Agreement; and the Seller is not in default with respect to any order of any court, administrative agency, arbitrator or governmental body so as to materially and adversely affect the Assignment transactions contemplated by this Agreement; and
(vii) the Seller's chief executive office and Assumption Agreement.principal place of business are located in the County of Orange in the State of California; and
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, thatLoans:
(i) The as of the Cut-off Date, the information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is givenrespects;
(ii) There are no defaults (other than delinquency in payment) in complying with immediately prior to the terms transfer to the Purchaser, the Seller had good title to and is the sole owner of each Mortgage and Mortgage Note relating to the Mortgage Loans, and is conveying the same free and clear of any Mortgageand all liens, claims, encumbrances, pledges, charges or security interests of any nature, the related Mortgage Note and the Mortgage were not subject to any pledge or assignment, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right legal authority to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(viiiii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title no default, release or waiver exists under the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loandocuments, and its successors and assigns, as no modifications to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims mortgage documents have been made that have not been disclosed;
(iv) there is no monetary default existing under such mortgagee Title Insurance Policy and no prior holder of any Mortgage or the related Mortgage, including Mortgage Note; neither the Seller, any of its affiliates nor any servicer of any related Mortgage Loan has donetaken any action to waive any default, by act breach or omission, anything that would impair the coverage event of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, acceleration with respect thereto; and no foreclosure action is being threatened or has been commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xvv) As each Mortgage Loan was underwritten in accordance with the underwriting guidelines of the Closing Date, Seller and its affiliates. The Seller has no Transferred knowledge of any fact that should have led it to expect at the time of the initial creation of an interest in the Mortgage Loan is the subject of pending or final foreclosure proceedingsthat such Mortgage Loan would not be paid in full when due;
(xvivi) As no selection procedures reasonably believed by the Seller to be adverse to the interest of the Closing Date, based on delinquencies Certificateholders have been used in payment on selecting the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Peoples Choice Home Loan Securities Trust Series 2004-2)
Representations and Warranties of the Seller. (a) The Seller hereby represents makes the following representations and warrants warranties on which (i) the Issuer is deemed to have relied in acquiring the Depositor that Contracts and (ii) the Insurer is deemed to have relied in issuing the Policy; provided such representations and warranties speak as of the execution and delivery of this Agreement and as of the Closing DateDate with respect to Sections 2.02(a), (b) and (c), and as of each Prefunding Transfer Date (with respect to the Prefunded Contracts conveyed to the Trust on such date) with respect to Sections 2.02(a) and (d), but shall survive the sale, transfer and assignment of the Contracts to the Issuer and the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) As to the Seller:
(i) The Seller is duly organized and validly existing as a corporation duly organized, validly organized and existing and in good standing under the laws governing its creation and existence and has full corporate of the State of Delaware, with power and authority to own its property, properties and to carry on conduct its business as presently conductedand had at all relevant times, and has, power, authority, and legal right to enter into originate or acquire and perform its obligations under this Agreement and own the Assignment and Assumption Agreement;Contracts.
(ii) The execution Seller is duly qualified to do business as a foreign corporation in good standing, and delivery shall have obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications.
(iii) The Seller has the power and authority to execute and deliver this Agreement and to carry out its terms; the Seller has full power and authority to sell and assign the property to be sold and assigned to and deposited with the Issuer and has duly authorized such sale and assignment to the Issuer by all necessary corporate action; and the execution, delivery, and performance of this Agreement has been duly authorized by the Seller by all necessary corporate action.
(iv) This Agreement constitutes (A) a valid sale, transfer, and assignment of the Contracts, enforceable against creditors of and purchasers from the Seller and (B) a legal, valid, and binding obligation of the Seller enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or at law.
(v) The consummation of the transactions contemplated by this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part fulfillment of the Seller; neither terms hereof shall not conflict with, result in any breach of any of the execution terms and delivery of this Agreement or the Assignment and Assumption Agreementprovisions of, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict constitute (with or result in a breach of, without notice or constitute lapse of time) a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
, or any indenture, agreement, or other instrument to which the Seller is a party or by which it shall be bound; nor result in the creation or imposition of any Lien upon any of the properties of the Seller pursuant to the terms of any such indenture, agreement, or other instrument (iii) The executionother than pursuant to the Basic Documents to which the Seller is a party); nor violate any law or any order, delivery and performance by rule, or regulation applicable to the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent any court or approval of, the giving of notice to, the registration with, or the taking of any other action in respect offederal or state regulatory body, any stateadministrative agency, federal or other governmental authority instrumentality having jurisdiction over the Seller or its properties.
(vi) To the Seller's best knowledge after due inquiry, there are no proceedings or investigations pending, or threatened, before any court, regulatory body, administrative agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by other governmental instrumentality having jurisdiction over the Seller and, assuming due authorization, execution and delivery by or its properties: (A) asserting the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case invalidity of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective termsNotes, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, seeking to prevent the knowledge issuance of the Seller, threatened Notes or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to consummation of any of the transactions contemplated by this Agreement Agreement, (C) seeking any determination or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller ruling that might materially and adversely affect it or the performance by the Seller of its business, assets, operations or condition, financial or otherwiseobligations under, or the validity or enforceability of, this Agreement, the Notes, or (D) naming the Seller which might adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreementfederal income tax attributes of the Notes.
(b) The representations and warranties of As to each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made Funded Contract (except as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are noted below as being applicable only to facts, conditions either Precomputed Contracts or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:Simple Interest Contracts):
(i) The information pertaining to such Contract set forth with respect to in the Transferred Mortgage Loans on the Mortgage Loan related Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is Contracts was true and correct in all material respects at the date or dates respecting which such information is given;Closing Date.
(ii) There are no defaults As of the Closing Date, such Contract was secured by a valid and enforceable first priority security interest in favor of Onyx in the related Financed Vehicle, and such security interest has been duly perfected and is prior to all other liens upon and security interests in such Financed Vehicle which now exist or may hereafter arise or be created (other than delinquency except, as to priority, for any lien for unpaid taxes or unpaid storage or repair charges which may arise after the Closing Date in payment) in complying accordance with the terms of any MortgageUCC); such security interest is assignable, and had been assigned by Onyx to the Seller pursuant to the Purchase Agreement, and, as of the Closing Date, has no notice as been assigned by the Seller to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;the Issuer pursuant to Section 2.01(a) hereof.
(iiiA) Except If the related Contract was originated in a state in which notation of a security interest on the Title Document (or in the case of Cooperative Loanselectronic title records) is required or permitted to perfect the security interest in the related Financed Vehicle, the Title Document or the electronic title records for such Financed Vehicle shows, or, if anya new or replacement Title Document is being applied for with respect to such Financed Vehicle, each Mortgage requires all buildings or other improvements on the Title Document will be received within 180 days of the Closing Date and will show, Onyx named as the original secured party under the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards Contract as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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 a first priority security interest in such insurance at such Mortgagor’s cost and expenseFinanced Vehicle, and (B) if the related Contract was originated in a state in which the filing of a financing statement under the UCC is required to seek reimbursement therefor perfect a security interest in motor vehicles, such filings or recordings have been duly made and show Onyx named as the original secured party under the related Contract, and in either case, the Indenture Trustee on behalf of the Noteholders and the Insurer has the same rights as such secured party has or would have (if such secured party were still the owner of such Contract) against all parties claiming an interest in such Financed Vehicle. With respect to each Contract for which the Title Document has not yet been returned from the Mortgagor. Where required by state law Registrar of Titles (or regulationevidenced in the electronic title records), each Mortgagor Onyx has written evidence that such Title Documents showing Onyx as first lienholder have 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;applied for.
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien As of the MortgageClosing Date, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, to and has full right was the sole owner of each such Contract to transfer and sell each Transferred Mortgage Loan be transferred to the Depositor Issuer pursuant to Section 2.01 free of liens, claims, encumbrances and clearrights of others and, except as described upon transfer of such Contract to the Issuer pursuant to Section 2.01, the Issuer will have good and marketable title to, will have a first priority perfected security interest in paragraph and will be the sole owner of such Contract free of liens, encumbrances and rights of others.
(v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder As of the related MortgageCut-Off Date, including the Sellermost recent scheduled payment due on each such Contract had been made or was not delinquent more than 30 days and, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To to the best of the Seller’s 's knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loanall payments on the Contract were made by the related Obligors.
(ixvi) There As of the Closing Date, there is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, lien against the related cooperative unitFinanced Vehicle for delinquent taxes.
(vii) and each such property As of the Closing Date, there is undamaged by wasteno right of rescission, fireoffset, earthquake defense or earth movement, windstorm, flood, tornado or other casualty, so as counterclaim to have a material adverse effect on the value obligation of the related Mortgaged Property as security for Obligor(s) to pay the related Transferred Mortgage Loan unpaid principal or interest due under such Contract; the operation of the terms of such Contract or the use for which exercise of any right thereunder will not render such Contract unenforceable in whole or in part or subject such Contract to any right of rescission, offset, defense or counterclaim, and the premises were intended;Seller has no knowledge that such right of rescission, offset, defense or counterclaim has been asserted or threatened.
(xviii) There As of the Closing Date, to the best of the Seller's knowledge, there are no mechanics’ or similar liens or claims which have been filed filed, including liens for work, labor labor, material, storage or material (and no rights are outstanding that under the law could give rise to such liens) unpaid taxes affecting the related Mortgaged Property Financed Vehicle which are or may be liens become a lien prior to, or equal or coordinate with, the lien security interest granted by such Contract.
(ix) Such Contract, and the sale of the related Mortgage;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan associationFinanced Vehicle sold thereunder, savings bankcomplied, commercial bank, credit union, 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;
(xii) Each Transferred Mortgage Loan at the time it was made complied made, in all material respects with all applicable localfederal, statestate and local laws (and regulations thereunder), including without limitation usury, equal credit opportunity, fair credit reporting, truth-in-lending or other similar laws, the Federal Trade Commission Act, the Fair Debt Collection Practices Act, the Fair Credit Billing Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal Reserve Board's Regulations B and Z, the Servicemembers' Civil Relief Act, state adoptions of the National Consumer Act and the Uniform Consumer Credit Code, and federal other applicable state laws regulating retail installment sales contracts and loans in general and motor vehicle retail installment contracts and loans in particular; and the consummation of the transactions herein contemplated, including, but without limitation, the transfer of ownership of such Contracts to the Issuer and the receipt of interest by the Noteholders, will not violate any applicable federal, state or local law. Such Contract was acquired from a Dealer without any fraud or misrepresentation on the part of Seller or Onyx.
(x) Such Contract is the legal, valid and binding obligation of the related Obligor(s) thereunder and is enforceable in accordance with its terms, except only as such enforcement may be limited toby bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally; each party to such Contract had full legal capacity to execute and deliver such Contract and all applicable predatory other documents related thereto and abusive lending laws;to grant the security interest purported to be granted thereby; the terms of such Contract have not been waived, amended or modified in any respect, except by instruments that are part of the related Contract Documents, and no such waiver, amendment or modification has caused such Contract to fail to meet all of the representations, warranties and conditions, set forth herein with respect thereto. No Obligor on such Contract is a federal, state or local government entity.
(xi) Such Contract contains customary and enforceable provisions such as to render the rights and remedies of the holder or assignee thereof adequate for the practical realization against the collateral of the benefits of the security, subject, as to enforceability, to bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors' rights generally.
(xii) As of the Closing Date, (a) there was no default, breach, violation or event permitting acceleration existing under such Contract (except payment delinquencies permitted by subparagraph (v) above), (b) there does not exist any continuing condition that with notice or lapse of time would constitute a default, breach, violation or event permitting acceleration existing under such Contract, and (c) the Seller has not waived any such default, breach, violation or event permitting acceleration except payment delinquencies permitted by subparagraph (v) above.
(xiii) As of the Closing Date, Date each Transferred Mortgage Loan is a “qualified mortgage” within related Financed Vehicle will be covered by the meaning Blanket Insurance Policy; each of Section 860G Onyx and the Seller shall at all times comply with all of the Code and Treas. Reg. §1.860G-2 (determined without regard provisions of such insurance policy applicable to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation it so long as such insurance policy is a qualified mortgage for a temporary period);in effect.
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides (a) such Contract will require that the related Obligor(s) obtain and maintain in effect for interest other than at either the related Financed Vehicle a comprehensive and collision insurance policy (i) a single fixed rate in effect throughout an amount at least equal to the term lesser of (x) its maximum insurable value or (y) the Transferred Mortgage Loan or principal amount due from the related Obligor(s) under such Contract, (ii) naming Onyx as a loss payee and (iii) insuring against loss and damage due to fire, theft, transportation, collision and other risks generally covered by comprehensive and collision coverage and (b) the Servicer shall have put in place a vendor's single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term interest insurance policy providing coverage upon repossession of the Transferred Mortgage Loan;related Financed Vehicle in an amount equal to the lesser of the actual cash value of such Financed Vehicle, the cost of repair or replacement for such Financed Vehicle and the unpaid balance of the related Contract. Each of Onyx and the Seller shall at all times comply with all of the provisions of such insurance policies applicable to it.
(xv) Such Contract was acquired by Onyx from a Dealer with which it ordinarily does business, and no adverse selection procedures have been utilized in selecting such Contract from all other similar contracts purchased or originated by Onyx or any subsidiary.
(xvi) Payments under such Contract have been applied in accordance with the Rule of 78's Method, the Actuarial Method or the Simple Interest Method, as provided in the applicable Contract, and are due monthly in substantially equal amounts through its Maturity Date sufficient to fully amortize the principal balance of such Contract by its Maturity Date.
(xvii) There is only one original of such Contract and such original, together with all other related Contract Documents, is being held by the Custodian.
(xviii) As of the Closing Date, no Transferred Mortgage Loan the Servicer has clearly marked its electronic records to indicate that such Contract is owned by the subject Issuer.
(xix) At the date of pending or final foreclosure origination of the Contract, the original principal balance of such Contract was not greater than the purchase price to the related Obligor(s) (including taxes, warranties, licenses and related charges) of the related Financed Vehicle.
(xx) The Seller has not received notice that any Obligor under such Contract was in bankruptcy proceedings, as of the related Cut-Off Date;
(xvixxi) Such Contract had an original maturity of not more than 72 months and as of the related Cut-Off Date, such Contract has a remaining maturity of 72 months or less;
(xxii) The first scheduled monthly payment for at least 80% of the Initial Contracts (by Outstanding Principal Balance) is due on or before February 29, 2004, and the first scheduled monthly payment for at least 80% of the Subsequent Contracts (by Outstanding Principal Balance) is due on or before March 31, 2004.
(xxiii) As of the Closing related Cut-Off Date, based on delinquencies such Contract has a remaining principal balance of at least $500.
(xxiv) As of the related Cut-Off Date, such Contract is secured by a Financed Vehicle that has not been repossessed without reinstatement.
(xxv) The related Obligor(s) were located in payment Alabama, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin or Wyoming on the Transferred Mortgage Loansdate of origination of such Contract.
(xxvi) The Obligor on such Contract is either (a) a natural person residing in any state or (b) another entity, the Seller would not initiate foreclosure proceedings provided that a natural person is a joint and several Obligor with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;Contract.
(xviic) No Transferred Mortgage Loan As to all of the Funded Contracts:
(i) The aggregate Outstanding Principal Balance payable by Obligors of the Funded Contracts as of the related Cut-Off Date plus the initial deposit into the Prefunding Account equals the Original Pool Balance.
(ii) As of the related Cut-Off Date, approximately 31.57% of the Outstanding Principal Balance of all Funded Contracts is a “highattributable to loans involving new Financed Vehicles, and approximately 68.43% of the Outstanding Principal Balance of all Funded Contracts is attributable to loans involving used Financed Vehicles.
(iii) As of the related Cut-cost,” “high-cost home,” “covered,” “high-risk home” Off Date, the aggregate Outstanding Principal Balance of all Funded Contracts originated in any single state, other than California, did not equal or “predatory” loan under any applicable federal, state or local predatory or abusive lending law exceed 10%.
(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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject d) As to the New Jersey Home Ownership Security Act of 2003 each Prefunded Contract (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.except as noted below
Appears in 1 contract
Sources: Sale and Servicing Agreement (Onyx Acceptance Financial Corp)
Representations and Warranties of the Seller. The Seller represents and warrants to the Purchaser as follows:
(a) The Seller hereby represents and warrants to the Depositor that is validly existing as of the Closing Date:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence of Delaware, and has the full corporate and legal right and power and authority to own its property, to carry on its business as presently conducted, and to enter into into, execute and perform its obligations under deliver this Agreement and the Assignment and Assumption Agreement;
(ii) The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or to perform fully its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption obligations hereunder. This Agreement has been duly executed and delivered by the Seller andand is the legal, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller Seller, enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.
(b) No consent, license, approval, order or authorization of, or registration, declaration or filing with any individual, corporation, joint venture, partnership, trust, unincorporated association, government or any department or agency thereof (each a "Person"), is required to be obtained by the Seller in connection with the sale of the Berlitz Shares to the Purchaser pursuant to and in accordance with the terms of this Agreement other than those which have been heretofore obtained.
(c) The representations and warranties sale of each Transferor the Berlitz Shares to the Purchaser hereunder will not (i) conflict with, or result in a violation or breach of any provision of, or constitute a default (or an event which with notice of lapse of time or both, would constitute a default) under (a) any contract or other agreement or instrument binding upon the Seller or applicable to the Berlitz Shares or (b) any judgment, decree, award, injunction, governmental order or other restriction or obligation to which the Seller is a party or by which it or any of its assets or properties may be bound; (ii) violate any statute, law or regulation of any jurisdiction applicable to the Seller or the assets or properties of the Seller; or (iii) result in a breach of the terms or conditions of, constitute a default under or otherwise cause an impairment of any license, permit, order, approval, registration, authorization or qualification of the Seller under any local, state, federal or foreign law.
(d) Neither the Seller nor any intermediary acting on its behalf has engaged in any form of general solicitation or advertising with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as sale of the date Berlitz Shares.
(e) The Seller is the beneficial owner of such Transfer the Berlitz Shares free and clear of any lien, charge, security interest, encumbrance, title retention agreement, adverse claim, option or right of others (each a "Lien"), other than those, if any, created by this Agreement. To Assuming the extent that Purchaser has no prior knowledge or notice of any factadverse claims to the Berlitz Shares, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under upon the applicable Transfer Agreement purchase and (ii) a representation or warranty of payment for the Seller under Berlitz Shares by the Purchaser as provided in this Agreement, the sole right or remedy of Purchaser will acquire good and valid title to the Depositor with respect to a breach by the Seller of such representation Berlitz Shares, free and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach clear of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing DateLien, other than with respect Liens created or suffered to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout exist by the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seqPurchaser.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 1 contract
Sources: Stock Purchase Agreement (Berlitz International Inc)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each the Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a the Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi) and 1.04(b)(xx(xvii)) , shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi) and 1.04(b)(xx(xvii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi) and 1.04(b)(xx(xvii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii), (xiv), (xv), (xvi) and (xvii)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such the Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such the Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ ▇▇▇ or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a Transferred the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each In the case of approximately 90.63% and 9.37% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien or second lien, respectively, on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) the first Mortgage, in the case of a Mortgaged Property that is secured by a perfected second lien, (2) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (23) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred such Mortgage Loan, and (34) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any In the case of approximately 90.63% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(x) [Reserved]
(xi) Each Transferred Mortgage Loan was originated by will have a savings and loan association, savings bank, commercial bank, credit union, insurance company CLTV of 100% 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 less as of the National Housing ActClosing Date;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 1.860G-2;
(determined without regard to Treas. Reg. §1.860G-2(fxiii) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)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;
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred No Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Datethen current Standard & Poor’s LEVELSâ Glossary. In addition, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred no Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home,” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred ;
(xv) No Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law;
(xvi) The information set forth in the Prepayment Charge Schedules, included as part of the Mortgage Loan Schedules at Schedules A-1 and A-2 hereto (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure); and
(xvii) No Mortgage Loan was originated (or modified) on or after November 27October 1, 2002 through March 6, 2003 which is secured by a “High-Cost Home Loan” subject mortgaged property located in Georgia.
(c) With respect to any of the New Jersey Home Ownership Security Act foregoing representations and warranties made in subparagraphs (xiii) (xiv), (xv), (xvi) and (xvii) of 2003 (N.J.S.A. 46:10B-22 et seq.Section 1.04(b); no Transferred , a breach of any such representations or warranties shall be deemed to materially and adversely affect the value of the affected Mortgage Loan and the interests of Certificateholders therein, irrespective of the Seller’s knowledge of such breach.
(d) Promptly upon discovery by the Seller or the Depositor that any First Payment Default Mortgage Loan may be repurchased by the Transferor, the Depositor shall enforce its rights under Section 20 of the Commitment Letter. If the price at which the Transferor is a “High-Cost Home Loan” subject required to the New Mexico Home Loan Protection Act (N.M.purchase an
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each the Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a the Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii) and 1.04(b)(xx(xix)) ), shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii) and 1.04(b)(xx(xix) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii) and 1.04(b)(xx(xix)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii), (xiv), (xv), (xvi), (xvii), and (xix)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ ▇▇▇ or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a Transferred the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each In the case of approximately 96.00% and 4.00% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien or second lien, respectively, on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) the first Mortgage, in the case of a Mortgaged Property that is secured by a perfected second lien, (2) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (23) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred such Mortgage Loan, and (34) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any In the case of approximately 96.00% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company or similar institution that is supervised and examined by a Federal federal or State state authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As will have a CLTV of 100% or less as of the Closing Date, each Transferred ;
(xii) Each Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 1.860G-2;
(determined without regard to Treas. Reg. §1.860G-2(fxiii) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)Each Mortgage Loan at the time it was originated complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable predatory and abusive lending laws;
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred No Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing DateStandard & Poor’s LEVELSâ Glossary, based on delinquencies Version 5.6 Revised, Appendix E, in payment effect on the Transferred Mortgage Loansdate hereof. In addition, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred no Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home,” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred ;
(xv) No Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law;
(xvi) The information set forth in the Prepayment Charge Schedules, included as part of the Mortgage Loan Schedule at Schedule A hereto (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure);
(xvii) No Mortgage Loan was originated (or modified) on or after November 27October 1, 2002 through March 6, 2003 which is secured by a “High-Cost Home Loan” subject mortgaged property located in Georgia;
(xviii) [Reserved]
(xix) In addition to the New Jersey Home Ownership Security Act foregoing representations and warranties made in subparagraphs (i) through (xvii) of 2003 this Section 1.04(b), the Seller further represents and warrants upon delivery of the Pool 2 Mortgage Loans, as to each, that:
(N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 1 contract
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii), (xviii) and 1.04(b)(xx(xix)) ), shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii), (xviii) and 1.04(b)(xx(xix) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii), (xviii) and 1.04(b)(xx(xix)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii), (xiv), (xv), (xvi), (xvii), (xviii) and (xix)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA F▇▇▇▇▇ Mae or FHLMCF▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each In the case of approximately 93.63% and 6.37% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien or second lien, respectively, on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) the first Mortgage, in the case of a Mortgaged Property that is secured by a perfected second lien, (2) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (23) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (34) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any In the case of approximately 93.63% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(x) [Reserved]
(xi) Each Transferred Mortgage Loan was originated by will have a savings and loan association, savings bank, commercial bank, credit union, insurance company CLTV of 100% 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 less as of the National Housing ActClosing Date;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxiii) As of Each Transferred Mortgage Loan at the Closing Datetime it was made complied in all material respects with applicable local, other than with respect to Retained Intereststate and federal laws, including, but not limited to, all applicable predatory, abusive and fair lending laws; and, specifically, (a) no Transferred Mortgage Loan provides for interest other than at either (i) secured by a single fixed rate Mortgaged Property located in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 New Jersey is a “High-Cost Home Loan” subject to as defined in the New Jersey Home Ownership Security Act of effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.); (b) no Transferred Mortgage Loan secured by a Mortgaged Property located in New Mexico is a “High-Cost Home Loan” subject to as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Sasco 2006-Bc2)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Datefollows:
(ia) The Seller is a corporation duly organizedincorporated, validly existing and in good standing under the laws governing its creation of the State of Delaware, and existence is duly qualified to do business and has full corporate power and authority to own its property, to carry on is in good standing as a foreign corporation in every jurisdiction where the nature of its business as presently conductedrequires it to be so qualified, and except where the failure to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement;be so qualified would not have a Material Adverse Effect.
(ii) The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iiib) The execution, delivery and performance by the Seller of this the Agreement and the Assignment other Transaction Documents to which it is a party, including its use of the proceeds of purchases and Assumption reinvestments: (i) are within its corporate powers; (ii) have been duly authorized by all necessary corporate action; (iii) do not contravene or result in a default under or conflict with: (A) its charter or by-laws, (B) any law, rule or regulation applicable to it, (C) any indenture, loan agreement, mortgage, deed of trust or other material agreement or instrument to which it is a party or by which it is bound, or (D) any order, writ, judgment, award, injunction or decree binding on or affecting it or any of its property; and (iv) do not result in or require the creation of any Adverse Claim upon or with respect to any of its properties. The Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior Transaction Documents to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has which it is a party have been duly executed and delivered by the Seller and, assuming due Seller.
(c) No authorization, execution approval or other action by, and no notice to or filing with, any Governmental Authority or other Person is required for its due execution, delivery and performance by the Bank, in the case Seller of the Assignment and Assumption Agreement or any other Transaction Document to which it is a party, other than the Uniform Commercial Code filings referred to in Exhibit II to the Agreement, all of which shall have been filed on or before the date of the first purchase hereunder.
(d) Each of the Agreement and the Depositorother Transaction Documents to which the Seller is a party constitutes its legal, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it the Seller in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and limited by bankruptcy, insolvency, reorganization or other similar laws from time to time in effect affecting the enforcement of the creditors’ rights of creditors generally and (B) by general principles of equity equity, regardless of whether such enforcement enforceability is considered in a proceeding in equity or at law; and.
(e) There is no pending or, to Seller’s best knowledge, threatened action or proceeding affecting Seller or any of its properties before any Governmental Authority or arbitrator.
(f) No proceeds of any purchase or reinvestment will be used to acquire any equity security of a class that is registered pursuant to Section 12 of the Securities Exchange Act of 1934.
(g) The Seller is the legal and beneficial owner of the Pool Receivables and Related Security, free and clear of any Adverse Claim. Upon each purchase or reinvestment, Administrator (for the benefit of each Purchaser) shall acquire a valid and enforceable perfected undivided percentage ownership or security interest, to the extent of the Purchased Interest, in each Pool Receivable then existing or thereafter arising and in the Related Security, Collections and other proceeds with respect thereto, free and clear of any Adverse Claim. The Agreement creates a security interest in favor of the Administrator (for the benefit of each Purchaser) in the Pool Assets, and the Administrator (for the benefit of each Purchaser) has a first priority perfected security interest in the Pool Assets, free and clear of any Adverse Claims. No effective financing statement or other instrument similar in effect covering any Pool Asset is on file in any recording office, except those filed in favor of the Seller pursuant to the Sale Agreement and the Administrator (for the benefit of each Purchaser) relating to the Agreement, or in respect of which the Administrator has received evidence satisfactory to the Administrator of acknowledgment copies, or time-stamped receipt copies, of proper financing statements releasing or terminating, as applicable, all security interests and other rights of any Person in such Pool Asset.
(h) Each Information Package (if prepared by the Seller or one of its Affiliates, or to the extent that information contained therein is supplied by the Seller or an Affiliate), information, exhibit, financial statement, document, book, record or report furnished or to be furnished at any time by or on behalf of the Seller to the Administrator or any Purchaser Agent in connection with the Agreement or any other Transaction Document to which it is a party is or will be complete and accurate in all material respects as of its date or as of the date so furnished, and does not and will not contain any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained therein not misleading.
(i) The Seller has filed all tax returns and reports required by law to have been filed by it and has paid all taxes and governmental charges thereby shown to be owing, except any such taxes or charges which are being diligently contested in good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its books.
(j) The names and addresses of all the Lock-Box Banks, together with the account numbers of the Lock-Box Accounts at such Lock-Box Banks, are specified in Schedule II to the Agreement (or at such other Lock-Box Banks and/or with such other Lock-Box Accounts as have been notified to the Administrator in accordance with the Agreement) and all Lock-Box Accounts are subject to Lock-Box Agreements (except as otherwise agreed to in writing by the Administrator and each Purchaser Agent or as provided in Section 4.3). Seller has not granted to any Person, other than the Administrator as contemplated by the Agreement, dominion and control of any Lock-Box Account, or the right to take dominion and control of any such account at a future time or upon the occurrence of a future event.
(k) The Seller is not in violation of any order of any court, arbitrator or Governmental Authority.
(l) Neither the Seller nor any of its Affiliates has any direct or indirect ownership or other financial interest in any Purchaser.
(m) No proceeds of any purchase or reinvestment will be used for any purpose that violates any applicable law, rule or regulation, including Regulations T, U or X of the Federal Reserve Board.
(n) Each Pool Receivable included as an Eligible Receivable in the calculation of the Net Receivables Pool Balance is an Eligible Receivable.
(o) No event has occurred and is continuing that constitutes a Termination Event or an Unmatured Termination Event and no event would result from a purchase in respect of, or reinvestment in respect of, the Purchased Interest or from the application of the proceeds therefrom that constitutes a Termination Event or an Unmatured Termination Event.
(p) The Seller has accounted for each sale of undivided percentage ownership interests in Receivables in its books and financial statements as sales, consistent with generally accepted accounting principles.
(q) The Seller has complied in all material respects with the Credit and Collection Policy of each Originator with regard to the Receivables originated by such Originator, unless such Receivables were not Eligible Receivables as of the date of the sale or conveyance of such Receivables by such Originator to the Seller under the Sale Agreement and the aggregate Outstanding Balance of all such Receivables does not exceed $1,000,000.
(r) The Seller has complied in all material respects with all of the terms, covenants and agreements contained in the Agreement and the other Transaction Documents that are applicable to it and all laws, rules, regulations and orders that are applicable to it.
(s) The Seller’s complete corporate name is set forth in the preamble to the Agreement, and it does not use and has not during the last six years used any other corporate name, trade name, doing-business name or fictitious name, except as set forth on Schedule III to the Agreement and except for names first used after the date of the Agreement and set forth in a notice delivered to the Administrator pursuant to Section 1(k)(iv) of Exhibit IV to the Agreement.
(t) The Seller (i) is not, and is not controlled by, an “investment company” registered or required to be registered under the Investment Company Act and (ii) is not a “covered fund” under the ▇▇▇▇▇▇▇ Rule. In determining that the Seller is not a “covered fund” under the ▇▇▇▇▇▇▇ Rule, the Seller relies on, and is entitled to rely on, the exemption from the definition of “investment company” set forth in Section 3(c)(5) of the Investment Company Act.
(u) With respect to each Receivable transferred to the Seller under the Sale Agreement, Seller has given reasonably equivalent value to the Originator thereof in consideration therefor and such transfer was not made for or on account of an antecedent debt. No transfer by any Originator of any Receivable under the Sale Agreement is or may be voidable under any section of the Bankruptcy Code.
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) Each Contract with respect to any each Receivable is effective to create, and has created, a legal, valid and binding obligation of the transactions contemplated related Obligor to pay the Outstanding Balance of the Receivable created thereunder and any accrued interest thereon, enforceable against the Obligor in accordance with its terms, except as such enforcement may be limited by this Agreement applicable bankruptcy, insolvency, reorganization or the Assignment other similar laws relating to or limiting creditors’ rights generally and Assumption Agreement by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
(Bw) with respect to any other matter which Since its most recent fiscal year end, there has been no change in the judgment business, operations, financial condition, properties or assets of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect which would have a Material Adverse Effect on its ability to perform its obligations under this the Agreement or the Assignment any other Transaction Document to which it is a party or materially and Assumption Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of adversely affect the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated under the Agreement 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;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage LoanTransaction Documents.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) There are no mechanics’ Neither Seller nor any of its directors, officers, employees, agent or similar liens Affiliates (i) is an “enemy” 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 an “ally of the related Mortgage;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgageenemy” within the meaning of Section 860G 2 of the Code and Treas. RegTrading with the Enemy Act of the United States (50 U.S.C. App. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 § 1 et seq.); no Transferred Mortgage Loan , (ii) is in violation of (A) any of the laws, regulations and executive orders administered by the U.S. Department of Treasury’s Office of Foreign Assets Control, including the International Emergency Economic Powers Act (50 U.S.C. §§ 1701-1705), the Trading with the Enemy Act (50 U.S.C. App. §§ 1-44), and the Office of Foreign Assets Control, Department of the Treasury regulations (31 C.F.R. Parts 500 et seq.), or (B) the Patriot Act (collectively, the “Anti-Terrorism Laws”) or (iii) is a “HighSanctioned Person. No part of the proceeds of any Purchase will be unlawfully used directly or, to its knowledge, indirectly to fund any operations in, finance any investments or activities in or make any payments to, a Sanctioned Person or a Sanctioned Country, or in any other manner that will result in any violation by it or, to its knowledge, by any other Person (including any Affected Person) of any Anti-Cost Home Loan” subject to Terrorism Laws.
(y) The Seller has not issued any LCR Securities, and the New Mexico Home Loan Protection Act (N.M.Seller is a consolidated subsidiary of Worthington under GAAP.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Worthington Industries Inc)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii) through (xvi)), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xxthrough (xvi) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the those representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)through (xvi) by it) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representation and warranties made by it pursuant to Sections 1.04(b)(xii) through (xvi)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ ▇▇▇ or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, with a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxii) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Each Transferred Mortgage Loan, at the time it was originated, complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable local, state and federal predatory and abusive lending laws;
(xvxiii) As of the Closing Date, no No Transferred Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing DateStandard & Poor’s LEVELS Glossary, based on delinquencies Version 5.6 Revised, Appendix E, in payment effect on the Transferred Mortgage Loansdate hereof. In addition, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No no Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home,” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no ;
(xiv) No Transferred Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law;
(xv) No Transferred Mortgage Loan (other than the two Mortgage Loans listed on Schedule B hereto) was originated (or modified) on or after November 27January 1, 2002 and before March 7, 2003 which is secured by a “High-Cost Home Loan” subject to mortgaged property located in Georgia;
(xvi) No Transferred Mortgage Loan that is secured by property located in Illinois is in violation of the New Jersey Home Ownership Security provisions of the Illinois Interest Act of 2003 (N.J.S.A. 46:10B-22 et 815 Ill. Comp. Stat. 205/1 et. seq.); no Transferred and
(xvii) The information set forth in the Prepayment Charge Schedules included as part of the Mortgage Loan Schedules at Schedules A and B (including the Prepayment Charge Summary attached thereto) is a “High-Cost Home Loan” subject complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the New Mexico Home Loan Protection Act extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure).
(N.M.c) In addition to the representations and warranties set forth in Section 1.04(b), all of which are also made by the Seller with respect to the Bank Originated Mortgage Loans as of
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement;
(ii) The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule (including the prepayment schedule) is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred Mortgage Loan (and the prepayment premium associated with such Transferred Mortgage Loan) at the time it was made complied in all material respects with, and was enforceable in accordance with its terms under, applicable local, state, and federal laws including, but not limited to, all applicable predatory and abusive lending lawslaws (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure);
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust Series 2007-18n)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of transfer of the related Mortgage Loans to the Bank pursuant to such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and or warranty (other than except in the case of a breach by the Seller of the these representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi) and 1.04(b)(xx)(xvii) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi) and 1.04(b)(xx(xvii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi) and 1.04(b)(xx(xvii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of these representations and warranties made pursuant to Sections 1.04(b)(xiii), (xiv) and (xv)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement[Reserved];
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first junior lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) senior liens of such Mortgage, (2) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (23) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (34) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first second lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy[Reserved];
(viii) To the best of the Seller’s knowledge, no No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xi) Each Transferred Mortgage Loan will have a CLTV of 100% or less as of the Closing Date;
(xii) Each Transferred Mortgage Loan at the time it was made complied in all material respects with applicable local, state, and federal laws including, but not limited that is secured by residential real property (or a leasehold interest therein) has a loan-to, all applicable predatory and abusive lending laws;
-value ratio of 100% or less (xiii) As by Scheduled Principal Balance as of the Closing Cut-off Date, each Transferred ). Each Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 1.860G-2;
(determined without regard to Treas. Reg. §1.860G-2(fxiii) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)Each Transferred Mortgage Loan at the time it was originated, complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable local, state and federal predatory and abusive lending laws;
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no No Transferred Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Datethen current Standard & Poor’s LEVELSâ Glossary, based on delinquencies in payment on the Transferred Mortgage Loanswhich is currently Version 5.6b Revised, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Appendix E. In addition, no Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home,” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no ;
(xv) No Transferred Mortgage Loan was originated (or modified) on or after November 27October 1, 2002 through March 6, 2003 which is secured by a “High-Cost Home Loan” mortgaged property located in Georgia;
(xvi) No Transferred Mortgage Loan was at the time of origination subject to the New Jersey Home Ownership Security and Equity Protection Act of 2003 1994 (N.J.S.A. 46:10B-22 et seq15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law; and
(xvii) The information set forth in the Prepayment Charge Schedules, included as part of the Mortgage Loan Schedules at Schedules A-1 and A-2 hereto (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure). It is understood and agreed that the representations and warranties set forth in Section 1.04(b) and 1.04(c) herein shall survive the Closing Date. Upon discovery by either the Seller or the Depositor of a breach of any of the foregoing representations and warranties (excluding a breach of subparagraph (xvii) under Section 1.04(b)) that adversely and materially affects the value of the related Mortgage Loan and that does not also constitute a breach of a representation or warranty of a Transferor in the related Transfer Agreement, the party discovering such breach shall give prompt written notice to the other party; provided, however, that notwithstanding anything to the contrary herein, this paragraph shall be specifically applicable to a breach by the Seller of the representations made pursuant to subparagraphs (xiii), (xiv) and (xv) of Section 1.04(b) irrespective of a Transferor’s breach of a comparable representation or warranty made in the related Transfer Agreement. Within 60 days of the discovery of any such breach, the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Depositor at the applicable Purchase Price or (c) within the two-year period following the Closing Date, substitute a Qualifying Substitute Mortgage Loan for the affected Mortgage Loan.
(c) In addition to the representations and warranties set forth in Section 1.04(b); , all of which are also made by the Seller with respect to the Bank Originated Mortgage Loans as of the Closing Date, the Seller hereby further represents and warrants to the Depositor upon the delivery to the Depositor on the Closing Date of any Bank Originated Mortgage Loans, but solely as to each Bank Originated Mortgage Loan, that, as of the Closing Date:
(i) With respect to any hazard insurance policy covering a Bank Originated Mortgage Loan and the related Mortgaged Property, the Seller has not engaged in, and has no Transferred knowledge of the Bank’s or the borrower’s having engaged in, any act or omission which would impair the coverage of any such policy, the benefits of the endorsement provided for therein, 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;
(ii) Neither the Seller nor the Bank has waived the performance by the borrower of any action, if the Mortgagor’s failure to perform such action would cause a Bank Originated Mortgage Loan to be in default, nor has the Seller or the Bank waived any default resulting from any action or inaction by the borrower;
(iii) 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, if necessary to protect the interests of the Depositor and which has been delivered to the related Custodian;
(iv) The Mortgaged Property relating to each Bank Originated Mortgage Loan is a “Highfee simple property located in the state identified in the Mortgage Loan Schedule and consists of a parcel of real property with a detached single family residence erected thereon, or a two- to four-Cost Home Loan” subject to family dwelling, or an individual condominium unit in a low-rise condominium project, or an individual unit in a planned unit development; provided, however, that any condominium project or planned unit development shall conform with the New Mexico Home Loan Protection Act (N.M.applicable ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac requirements regarding such dwellings. No portion of the Mortgaged Property is used
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp 2005-S4)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a the Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii), (xviii) and 1.04(b)(xx(xix)) ), shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii), (xviii) and 1.04(b)(xx(xix) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii), (xviii) and 1.04(b)(xx(xix)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii), (xiv), (xv), (xvi), (xvii), (xviii) and (xix)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ ▇▇▇ or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each In the case of approximately 97.68% and 2.32% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien or second lien, respectively, on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) the first Mortgage, in the case of a Mortgaged Property that is secured by a perfected second lien, (2) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (23) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (34) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any In the case of approximately 97.68% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(x) [Reserved]
(xi) Each Transferred Mortgage Loan was originated by will have a savings and loan association, savings bank, commercial bank, credit union, insurance company CLTV of 100% 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 less as of the National Housing ActClosing Date;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxiii) As of Each Transferred Mortgage Loan at the Closing Datetime it was made complied in all material respects with applicable local, other than with respect to Retained Intereststate and federal laws, including, but not limited to, all applicable predatory, abusive and fair lending laws; and, specifically, (a) no Transferred Mortgage Loan provides for interest other than at either (i) secured by a single fixed rate Mortgaged Property located in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 New Jersey is a “High-Cost Home Loan” subject to as defined in the New Jersey Home Ownership Security Act of effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.); (b) no Transferred Mortgage Loan secured by a Mortgaged Property located in New Mexico is a “High-Cost Home Loan” subject to as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.
Appears in 1 contract
Representations and Warranties of the Seller. (a) The Seller hereby represents makes the following representations and warrants warranties on which (i) the Issuer is deemed to have relied in acquiring the Depositor that Contracts and (ii) the Insurer is deemed to have relied in issuing the Policy; provided such representations and warranties speak as of the execution and delivery of this Agreement and as of the Closing DateDate with respect to Sections 2.02(a), (b) and (c), and as of each Prefunding Transfer Date (with respect to the Prefunded Contracts conveyed to the Trust on such date) with respect to Sections 2.02(a) and (d), but shall survive the sale, transfer and assignment of the Contracts to the Issuer and the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) As to the Seller:
(i) The Seller is duly organized and validly existing as a corporation duly organized, validly organized and existing and in good standing under the laws governing its creation and existence and has full corporate of the State of Delaware, with power and authority to own its property, properties and to carry on conduct its business as presently conductedand had at all relevant times, and has, power, authority, and legal right to enter into originate or acquire and perform its obligations under this Agreement and own the Assignment and Assumption Agreement;Contracts.
(ii) The execution Seller is duly qualified to do business as a foreign corporation in good standing, and delivery shall have obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications.
(iii) The Seller has the power and authority to execute and deliver this Agreement and to carry out its terms; the Seller has full power and authority to sell and assign the property to be sold and assigned to and deposited with the Issuer and has duly authorized such sale and assignment to the Issuer by all necessary corporate action; and the execution, delivery, and performance of this Agreement has been duly authorized by the Seller by all necessary corporate action.
(iv) This Agreement constitutes (A) a valid sale, transfer, and assignment of the Contracts, enforceable against creditors of and purchasers from the Seller and (B) a legal, valid, and binding obligation of the Seller enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or at law.
(v) The consummation of the transactions contemplated by this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part fulfillment of the Seller; neither terms hereof shall not conflict with, result in any breach of any of the execution terms and delivery of this Agreement or the Assignment and Assumption Agreementprovisions of, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict constitute (with or result in a breach of, without notice or constitute lapse of time) a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
, or any indenture, agreement, or other instrument to which the Seller is a party or by which it shall be bound; nor result in the creation or imposition of any Lien upon any of the properties of the Seller pursuant to the terms of any such indenture, agreement, or other instrument (iii) The executionother than pursuant to the Basic Documents to which the Seller is a party); nor violate any law or any order, delivery and performance by rule, or regulation applicable to the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent any court or approval of, the giving of notice to, the registration with, or the taking of any other action in respect offederal or state regulatory body, any stateadministrative agency, federal or other governmental authority instrumentality having jurisdiction over the Seller or its properties.
(vi) To the Seller's best knowledge after due inquiry, there are no proceedings or investigations pending, or threatened, before any court, regulatory body, administrative agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by other governmental instrumentality having jurisdiction over the Seller and, assuming due authorization, execution and delivery by or its properties: (A) asserting the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case invalidity of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective termsNotes, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, seeking to prevent the knowledge issuance of the Seller, threatened Notes or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to consummation of any of the transactions contemplated by this Agreement Agreement, (C) seeking any determination or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller ruling that might materially and adversely affect it or the performance by the Seller of its business, assets, operations or condition, financial or otherwiseobligations under, or the validity or enforceability of, this Agreement, the Notes, or (D) naming the Seller which might adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreementfederal income tax attributes of the Notes.
(b) The representations and warranties of As to each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made Funded Contract (except as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are noted below as being applicable only to facts, conditions either Precomputed Contracts or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:Simple Interest Contracts):
(i) The information pertaining to such Contract set forth with respect to in the Transferred Mortgage Loans on the Mortgage Loan related Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is Contracts was true and correct in all material respects at the date or dates respecting which such information is given;Closing Date.
(ii) There are no defaults As of the Closing Date, such Contract was secured by a valid and enforceable first priority security interest in favor of Onyx in the related Financed Vehicle, and such security interest has been duly perfected and is prior to all other liens upon and security interests in such Financed Vehicle which now exist or may hereafter arise or be created (other than delinquency except, as to priority, for any lien for unpaid taxes or unpaid storage or repair charges which may arise after the Closing Date in payment) in complying accordance with the terms of any MortgageUCC); such security interest is assignable, and had been assigned by Onyx to the Seller pursuant to the Purchase Agreement, and, as of the Closing Date, has no notice as been assigned by the Seller to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;the Issuer pursuant to Section 2.01(a) hereof.
(iiiA) Except If the related Contract was originated in a state in which notation of a security interest on the Title Document (or in the case of Cooperative Loanselectronic title records) is required or permitted to perfect the security interest in the related Financed Vehicle, the Title Document or the electronic title records for such Financed Vehicle shows, or, if anya new or replacement Title Document is being applied for with respect to such Financed Vehicle, each Mortgage requires all buildings or other improvements on the Title Document will be received within 180 days of the Closing Date and will show, Onyx named as the original secured party under the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards Contract as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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 a first priority security interest in such insurance at such Mortgagor’s cost and expenseFinanced Vehicle, and (B) if the related Contract was originated in a state in which the filing of a financing statement under the UCC is required to seek reimbursement therefor perfect a security interest in motor vehicles, such filings or recordings have been duly made and show Onyx named as the original secured party under the related Contract, and in either case, the Indenture Trustee on behalf of the Noteholders and the Insurer has the same rights as such secured party has or would have (if such secured party were still the owner of such Contract) against all parties claiming an interest in such Financed Vehicle. With respect to each Contract for which the Title Document has not yet been returned from the Mortgagor. Where required by state law Registrar of Titles (or regulationevidenced in the electronic title records), each Mortgagor Onyx has written evidence that such Title Documents showing Onyx as first lienholder have 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;applied for.
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien As of the MortgageClosing Date, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, to and has full right was the sole owner of each such Contract to transfer and sell each Transferred Mortgage Loan be transferred to the Depositor Issuer pursuant to Section 2.01 free of liens, claims, encumbrances and clearrights of others and, except as described upon transfer of such Contract to the Issuer pursuant to Section 2.01, the Issuer will have good and marketable title to, will have a first priority perfected security interest in paragraph and will be the sole owner of such Contract free of liens, encumbrances and rights of others.
(v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder As of the related MortgageCut-Off Date, including the Sellermost recent scheduled payment due on each such Contract had been made or was not delinquent more than 30 days and, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To to the best of the Seller’s 's knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loanall payments on the Contract were made by the related Obligors.
(ixvi) There As of the Closing Date, there is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, lien against the related cooperative unitFinanced Vehicle for delinquent taxes.
(vii) and each such property As of the Closing Date, there is undamaged by wasteno right of rescission, fireoffset, earthquake defense or earth movement, windstorm, flood, tornado or other casualty, so as counterclaim to have a material adverse effect on the value obligation of the related Mortgaged Property as security for Obligor(s) to pay the related Transferred Mortgage Loan unpaid principal or interest due under such Contract; the operation of the terms of such Contract or the use for which exercise of any right thereunder will not render such Contract unenforceable in whole or in part or subject such Contract to any right of rescission, offset, defense or counterclaim, and the premises were intended;Seller has no knowledge that such right of rescission, offset, defense or counterclaim has been asserted or threatened.
(xviii) There As of the Closing Date, to the best of the Seller's knowledge, there are no mechanics’ or similar liens or claims which have been filed filed, including liens for work, labor labor, material, storage or material (and no rights are outstanding that under the law could give rise to such liens) unpaid taxes affecting the related Mortgaged Property Financed Vehicle which are or may be liens become a lien prior to, or equal or coordinate with, the lien security interest granted by such Contract.
(ix) Such Contract, and the sale of the related Mortgage;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan associationFinanced Vehicle sold thereunder, savings bankcomplied, commercial bank, credit union, 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;
(xii) Each Transferred Mortgage Loan at the time it was made complied made, in all material respects with all applicable localfederal, statestate and local laws (and regulations thereunder), including without limitation usury, equal credit opportunity, fair credit reporting, truth-in-lending or other similar laws, the Federal Trade Commission Act, the Fair Debt Collection Practices Act, the Fair Credit Billing Act, the Magnuson- Moss Warranty Act, the Federal Reserve ▇▇▇▇▇'▇ ▇▇▇▇▇▇▇▇▇▇▇ B and Z, the Soldiers' and Sailors' Civil Relief Act of 1940, state adoptions of the National Consumer Act and the Uniform Consumer Credit Code, and federal other applicable state laws regulating retail installment sales contracts and loans in general and motor vehicle retail installment contracts and loans in particular; and the consummation of the transactions herein contemplated, including, but without limitation, the transfer of ownership of such Contracts to the Issuer and the receipt of interest by the Noteholders, will not violate any applicable federal, state or local law.
(x) Such Contract is the legal, valid and binding obligation of the related Obligor(s) thereunder and is enforceable in accordance with its terms, except only as such enforcement may be limited toby bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally; each party to such Contract had full legal capacity to execute and deliver such Contract and all applicable predatory other documents related thereto and abusive lending laws;to grant the security interest purported to be granted thereby; the terms of such Contract have not been waived, amended or modified in any respect, except by instruments that are part of the related Contract Documents, and no such waiver, amendment or modification has caused such Contract to fail to meet all of the representations, warranties and conditions, set forth herein with respect thereto.
(xi) Such Contract contains customary and enforceable provisions such as to render the rights and remedies of the holder or assignee thereof adequate for the practical realization against the collateral of the benefits of the security, subject, as to enforceability, to bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors' rights generally.
(xii) As of the Closing Date, (a) there was no default, breach, violation or event permitting acceleration existing under such Contract (except payment delinquencies permitted by subparagraph (v) above), (b) there does not exist any continuing condition that with notice or lapse of time would constitute a default, breach, violation or event permitting acceleration existing under such Contract, and (c) the Seller has not waived any such default, breach, violation or event permitting acceleration except payment delinquencies permitted by subparagraph (v) above.
(xiii) As of the Closing Date, Date each Transferred Mortgage Loan is a “qualified mortgage” within related Financed Vehicle will be covered by the meaning Blanket Insurance Policy; each of Section 860G Onyx and the Seller shall at all times comply with all of the Code and Treas. Reg. §1.860G-2 (determined without regard provisions of such insurance policy applicable to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation it so long as such insurance policy is a qualified mortgage for a temporary period);in effect.
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides (a) such Contract will require that the related Obligor(s) obtain and maintain in effect for interest other than at either the related Financed Vehicle a comprehensive and collision insurance policy (i) a single fixed rate in effect throughout an amount at least equal to the term lesser of (x) its maximum insurable value or (y) the Transferred Mortgage Loan or principal amount due from the related Obligor(s) under such Contract, (ii) naming Onyx as a loss payee and (iii) insuring against loss and damage due to fire, theft, transportation, collision and other risks generally covered by comprehensive and collision coverage and (b) the Servicer shall have put in place a vendor's single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term interest insurance policy providing coverage upon repossession of the Transferred Mortgage Loan;related Financed Vehicle in an amount equal to the lesser of the actual cash value of such Financed Vehicle, the cost of repair or replacement for such Financed Vehicle and the unpaid balance of the related Contract. Each of Onyx and the Seller shall at all times comply with all of the provisions of such insurance policies applicable to it.
(xv) Such Contract was acquired by Onyx from a Dealer with which it ordinarily does business, and no adverse selection procedures have been utilized in selecting such Contract from all other similar contracts purchased or originated by Onyx or any subsidiary.
(xvi) Payments under such Contract have been applied in accordance with the Rule of 78's Method, the Actuarial Method or the Simple Interest Method, as provided in the applicable Contract, and are due monthly in substantially equal amounts through its Maturity Date sufficient to fully amortize the principal balance of such Contract by its Maturity Date.
(xvii) There is only one original of such Contract and such original, together with all other related Contract Documents, is being held by the Custodian.
(xviii) As of the Closing Date, no Transferred Mortgage Loan the Servicer has clearly marked its electronic records to indicate that such Contract is owned by the subject of pending or final foreclosure proceedings;Issuer.
(xvixix) At the date of origination of the Contract, the original principal balance of such Contract was not greater than the purchase price to the related Obligor(s) (including taxes, warranties, licenses and related charges) of the related Financed Vehicle.
(xx) As of the Closing related Cut-Off Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would has not initiate foreclosure proceedings received notice that any Obligor under such Contract has filed for bankruptcy.
(xxi) Such Contract had an original maturity of not more than 72 months and as of the related Cut-Off Date, such Contract has a remaining maturity of 72 months or less;
(xxii) The first scheduled monthly payment for at least 80% of the Initial Contracts (by Outstanding Principal Balance) is due on or before October 31, 2001, and the first scheduled monthly payment for at least 90% of the Subsequent Contracts (by Outstanding Principal Balance) is due on or before November 30, 2001.
(xxiii) As of the related Cut-Off Date, such Contract has a remaining principal balance of at least $500.
(xxiv) As of the related Cut-Off Date, such Contract is secured by a Financed Vehicle that has not been repossessed without reinstatement.
(xxv) The related Obligor(s) were located in Alabama, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, North Carolina, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, Washington or West Virginia on the date of origination of such Contract.
(xxvi) The Obligor on such Contract is either (a) a natural person residing in any state or (b) another entity, provided that a natural person is a joint and several Obligor with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;Contract.
(xviic) No Transferred Mortgage Loan As to all of the Funded Contracts:
(i) The aggregate Outstanding Principal Balance payable by Obligors of the Funded Contracts as of the related Cut-Off Date plus the initial deposit into the Prefunding Account equals the Original Pool Balance.
(ii) As of the related Cut-Off Date, approximately 25.31% of the Outstanding Principal Balance of all Funded Contracts is a “highattributable to loans involving new Financed Vehicles, and approximately 74.69% of the Outstanding Principal Balance of all Funded Contracts is attributable to loans involving used Financed Vehicles.
(iii) As of the related Cut-cost,” “high-cost home,” “covered,” “high-risk home” Off Date, the aggregate Outstanding Principal Balance of all Funded Contracts originated in any single state, other than California, did not equal or “predatory” loan under any exceed 10%.
(d) As to each Prefunded Contract (except as noted below as being applicable federalonly to either Precomputed Contracts or Simple Interest Contracts), state or local predatory or abusive lending law as of the related Prefunding Transfer Date (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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject except as otherwise noted):
(i) The information pertaining to such Contract set forth in the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.related Transfer Certifi
Appears in 1 contract
Sources: Sale and Servicing Agreement (Onyx Acceptance Financial Corp)
Representations and Warranties of the Seller. The Seller (on behalf of itself and, with respect to the representations and warranties contained in subsections (e) through (h), each Registrable Securities Holder) hereby makes the following representations and warranties to the Buyer and Star Maritime:
(a) The Seller hereby represents it is duly organized and warrants to the Depositor that as of the Closing Date:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws governing of the jurisdiction of its creation and existence and has organization with full corporate power and authority to own its property, to carry on its business as presently conducted, execute and to enter into and perform its obligations under deliver this Agreement and to perform all of the Assignment duties and Assumption obligations to be performed by it under this Agreement;
(iib) The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly authorized, executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreementit, and the Depositorconstitutes its valid, in the case of this Agreement, constitutes a valid legal and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and limited by bankruptcy, insolvency laws and or other similar laws of general application relating to or affecting the enforcement of the creditors' rights of creditors generally and (B) in general or by general principles of equity regardless of whether such enforcement is considered in a proceeding in equity at law or at law; andequity;
(vc) There its execution and delivery of, the performance and incurrence by it of its obligations and liabilities under, and the consummation by it of the other transactions contemplated by, this Agreement do not and will not (i) violate any provision of its organizational documents, (ii) violate any applicable law, rule or regulation, (iii) violate any order, writ, injunction or decree of any court or governmental or regulatory authority or agency or any arbitral award applicable to it or its affiliates or (iv) subject to the consent of applicable charterers of the Vessels, result in a breach of, constitute a default under, require any consent under, or result in the acceleration or required prepayment of any indebtedness pursuant to the terms of, any agreement or instrument of which it is a party or by which it is bound or to which it is subject, or result in the creation or imposition of any lien upon any property of it pursuant to the terms of any such agreement or instrument, in the case of (i), (ii), (iii) or (iv) which could have a material adverse effect on the transactions contemplated hereby;
(d) there are no legal or governmental actions, suits or proceedings pending or, to the knowledge of the Sellerits knowledge, threatened or likely to be asserted against or affecting the Seller, it before or by any court, administrative agencyagency or tribunal which, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and it, could reasonably be expected to adversely affect the ability of it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.;
(be) The representations and warranties it is an "accredited investor" within the meaning of each Transferor Rule 501 of Regulation D under the Securities Act;
(f) it has received or has had full access to all the information it considers necessary or appropriate to make an informed decision with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as acquisition of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is givenBuyer Common Stock;
(iig) There the Buyer Common Stock being acquired by it are no defaults (other than delinquency in payment) in complying being acquired for its own account for the purpose of investment and not with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related view to, and delivered to the Trustee or for resale in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” distribution thereof within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);Securities Act; and
(xivh) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either it understands that (i) the shares of Buyer Common Stock have not been registered under the Securities Act by reason of their issuance in a single fixed rate in effect throughout transaction exempt from the term registration requirements of the Transferred Mortgage Loan or Securities Act, (ii) a single “variable rate” the shares of Buyer Common Stock must be held indefinitely (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Datesubject, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Datehowever, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on Buyer's obligation to effect the registration of registrable securities in accordance with Section 5 hereof) unless a subsequent disposition thereof is registered under the Securities Act or is exempt from such Transferred Mortgage Loan;
registration, and (xviiiii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject the shares of Buyer Common Stock will bear the legend to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seqsuch effect set forth in Section 5(l) hereof.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 1 contract
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv) and (xv)), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii), 1.04(b)(xix(xiv) and 1.04(b)(xx(xv) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii), 1.04(b)(xix(xiv) and 1.04(b)(xx(xv)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representation and warranties made by it pursuant to Sections 1.04(b)(xii), (xiii), (xiv) and (xv)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ Mae or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, with a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxii) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Each Transferred Mortgage Loan, at the time it was originated, complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable local, state and federal predatory and abusive lending laws;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xviixiii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” (other than in respect of one covered loan originated in the state of Georgia, which was originated by an originator regulated by the Office of Thrift Supervision and/or Office of the Comptroller of the Currency) “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending law 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); no xiv) No Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” was at the time of origination subject to the New Jersey Home Ownership Security and Equity Protection Act of 2003 1994 (N.J.S.A. 46:10B-22 et seq.15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law; no and
(xv) In addition to the foregoing representations and warranties made in subparagraphs (i) through (xiv) of this Section 1.04(b), the Seller further represents and warrants upon delivery of the Pool 4 Transferred Mortgage Loans, as to each, that:
(a) No Pool 4 Transferred Mortgage Loan is was originated in the State of Georgia between October 1, 2002 and March 7, 2003;
(b) To the best of the Seller’s knowledge, no borrower was required to purchase any credit life, disability, accident or health insurance product as a “Highcondition of obtaining the extension of credit evidenced by the Pool 4 Transferred Mortgage Loan. No borrower obtained a prepaid single premium credit life, disability, accident or health insurance policy in connection with the origination of the Pool 4 Transferred Mortgage Loan; no proceeds from any Pool 4 Transferred Mortgage Loan were used to purchase single premium credit insurance policies as part of the origination of, or as a condition to closing, such Pool 4 Transferred Mortgage Loan;
(c) The applicable Servicer for each Pool 4 Transferred Mortgage Loan has fully furnished in the past (and the Seller shall cause the applicable Servicer to furnish in the future), in accordance with the Fair Credit Reporting Act and its implementing regulations, accurate and complete information on its borrower credit files to Equifax, Experian and Trans Union Credit Information Company, on a monthly basis;
(d) No Pool 4 Transferred Mortgage Loan imposes a Prepayment Charge for a term in excess of five years;
(e) The Cut-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.off Date Balance of each Pool 4 Transferred Mortg
Appears in 1 contract
Representations and Warranties of the Seller. (a) The Seller hereby represents makes the following representations and warrants warranties on which (i) the Issuer is deemed to have relied in acquiring the Depositor that Contracts and (ii) the Insurer is deemed to have relied in issuing the Policy; provided such representations and warranties speak as of the execution and delivery of this Agreement and as of the Closing DateDate with respect to Sections 2.02(a), (b) and (c), and as of each Prefunding Transfer Date (with respect to the Prefunded Contracts conveyed to the Trust on such date) with respect to Sections 2.02(a) and (d), but shall survive the sale, transfer and assignment of the Contracts to the Issuer and the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) As to the Seller:
(i) The Seller is duly organized and validly existing as a corporation duly organized, validly organized and existing and in good standing under the laws governing its creation and existence and has full corporate of the State of Delaware, with power and authority to own its property, properties and to carry on conduct its business as presently conductedand had at all relevant times, and has, power, authority, and legal right to enter into originate or acquire and perform its obligations under this Agreement and own the Assignment and Assumption Agreement;Contracts.
(ii) The execution Seller is duly qualified to do business as a foreign corporation in good standing, and delivery shall have obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications.
(iii) The Seller has the power and authority to execute and deliver this Agreement and to carry out its terms; the Seller has full power and authority to sell and assign the property to be sold and assigned to and deposited with the Issuer and has duly authorized such sale and assignment to the Issuer by all necessary corporate action; and the execution, delivery, and performance of this Agreement has been duly authorized by the Seller by all necessary corporate action.
(iv) This Agreement constitutes (A) a valid sale, transfer, and assignment of the Contracts, enforceable against creditors of and purchasers from the Seller and (B) a legal, valid, and binding obligation of the Seller enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or at law.
(v) The consummation of the transactions contemplated by this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part fulfillment of the Seller; neither terms hereof shall not conflict with, result in any breach of any of the execution terms and delivery of this Agreement or the Assignment and Assumption Agreementprovisions of, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict constitute (with or result in a breach of, without notice or constitute lapse of time) a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
, or any indenture, agreement, or other instrument to which the Seller is a party or by which it shall be bound; nor result in the creation or imposition of any Lien upon any of the properties of the Seller pursuant to the terms of any such indenture, agreement, or other instrument (iii) The executionother than pursuant to the Basic Documents to which the Seller is a party); nor violate any law or any order, delivery and performance by rule, or regulation applicable to the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent any court or approval of, the giving of notice to, the registration with, or the taking of any other action in respect offederal or state regulatory body, any stateadministrative agency, federal or other governmental authority instrumentality having jurisdiction over the Seller or its properties.
(vi) To the Seller's best knowledge after due inquiry, there are no proceedings or investigations pending, or threatened, before any court, regulatory body, administrative agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by other governmental instrumentality having jurisdiction over the Seller and, assuming due authorization, execution and delivery by or its properties: (A) asserting the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case invalidity of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective termsNotes, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, seeking to prevent the knowledge issuance of the Seller, threatened Notes or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to consummation of any of the transactions contemplated by this Agreement Agreement, (C) seeking any determination or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller ruling that might materially and adversely affect it or the performance by the Seller of its business, assets, operations or condition, financial or otherwiseobligations under, or the validity or enforceability of, this Agreement, the Notes, or (D) naming the Seller which might adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreementfederal income tax attributes of the Notes.
(b) The representations and warranties of As to each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made Funded Contract (except as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are noted below as being applicable only to facts, conditions either Precomputed Contracts or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:Simple Interest Contracts):
(i) The information pertaining to such Contract set forth with respect to in the Transferred Mortgage Loans on the Mortgage Loan related Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is Contracts was true and correct in all material respects at the date or dates respecting which such information is given;Closing Date.
(ii) There are no defaults As of the Closing Date, such Contract was secured by a valid and enforceable first priority security interest in favor of Onyx in the related Financed Vehicle, and such security interest has been duly perfected and is prior to all other liens upon and security interests in such Financed Vehicle which now exist or may hereafter arise or be created (other than delinquency except, as to priority, for any lien for unpaid taxes or unpaid storage or repair charges which may arise after the Closing Date in payment) in complying accordance with the terms of any MortgageUCC); such security interest is assignable, and had been assigned by Onyx to the Seller pursuant to the Purchase Agreement, and, as of the Closing Date, has no notice as been assigned by the Seller to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;the Issuer pursuant to Section 2.01(a) hereof.
(iiiA) Except If the related Contract was originated in a state in which notation of a security interest on the Title Document (or in the case of Cooperative Loanselectronic title records) is required or permitted to perfect the security interest in the related Financed Vehicle, the Title Document or the electronic title records for such Financed Vehicle shows, or, if anya new or replacement Title Document is being applied for with respect to such Financed Vehicle, each Mortgage requires all buildings or other improvements on the Title Document will be received within 180 days of the Closing Date and will show, Onyx named as the original secured party under the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards Contract as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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 a first priority security interest in such insurance at such Mortgagor’s cost and expenseFinanced Vehicle, and (B) if the related Contract was originated in a state in which the filing of a financing statement under the UCC is required to seek reimbursement therefor perfect a security interest in motor vehicles, such filings or recordings have been duly made and show Onyx named as the original secured party under the related Contract, and in either case, the Indenture Trustee on behalf of the Noteholders and the Insurer has the same rights as such secured party has or would have (if such secured party were still the owner of such Contract) against all parties claiming an interest in such Financed Vehicle. With respect to each Contract for which the Title Document has not yet been returned from the Mortgagor. Where required by state law Registrar of Titles (or regulationevidenced in the electronic title records), each Mortgagor Onyx has written evidence that such Title Documents showing Onyx as first lienholder have 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;applied for.
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien As of the MortgageClosing Date, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, to and has full right was the sole owner of each such Contract to transfer and sell each Transferred Mortgage Loan be transferred to the Depositor Issuer pursuant to Section 2.01 free of liens, claims, encumbrances and clearrights of others and, except as described upon transfer of such Contract to the Issuer pursuant to Section 2.01, the Issuer will have good and marketable title to, will have a first priority perfected security interest in paragraph and will be the sole owner of such Contract free of liens, encumbrances and rights of others.
(v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder As of the related MortgageCut-Off Date, including the Sellermost recent scheduled payment due on each such Contract had been made or was not delinquent more than 30 days and, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To to the best of the Seller’s 's knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loanall payments on the Contract were made by the related Obligors.
(ixvi) There As of the Closing Date, there is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, lien against the related cooperative unitFinanced Vehicle for delinquent taxes.
(vii) and each such property As of the Closing Date, there is undamaged by wasteno right of rescission, fireoffset, earthquake defense or earth movement, windstorm, flood, tornado or other casualty, so as counterclaim to have a material adverse effect on the value obligation of the related Mortgaged Property as security for Obligor(s) to pay the related Transferred Mortgage Loan unpaid principal or interest due under such Contract; the operation of the terms of such Contract or the use for which exercise of any right thereunder will not render such Contract unenforceable in whole or in part or subject such Contract to any right of rescission, offset, defense or counterclaim, and the premises were intended;Seller has no knowledge that such right of rescission, offset, defense or counterclaim has been asserted or threatened.
(xviii) There As of the Closing Date, to the best of the Seller's knowledge, there are no mechanics’ or similar liens or claims which have been filed filed, including liens for work, labor labor, material, storage or material (and no rights are outstanding that under the law could give rise to such liens) unpaid taxes affecting the related Mortgaged Property Financed Vehicle which are or may be liens become a lien prior to, or equal or coordinate with, the lien security interest granted by such Contract.
(ix) Such Contract, and the sale of the related Mortgage;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan associationFinanced Vehicle sold thereunder, savings bankcomplied, commercial bank, credit union, 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;
(xii) Each Transferred Mortgage Loan at the time it was made complied made, in all material respects with all applicable localfederal, statestate and local laws (and regulations thereunder), including without limitation usury, equal credit opportunity, fair credit reporting, truth-in-lending or other similar laws, the Federal Trade Commission Act, the Fair Debt Collection Practices Act, the Fair Credit Billing Act, the Magnuson-Moss Warranty Act, the Federal Re▇▇▇▇▇ ▇▇▇▇▇'▇ Regulations B and Z, the Soldiers' and Sailors' Civil Relief Act of 1940, state adoptions of the National Consumer Act and the Uniform Consumer Credit Code, and federal other applicable state laws regulating retail installment sales contracts and loans in general and motor vehicle retail installment contracts and loans in particular; and the consummation of the transactions herein contemplated, including, but without limitation, the transfer of ownership of such Contracts to the Issuer and the receipt of interest by the Noteholders, will not violate any applicable federal, state or local law.
(x) Such Contract is the legal, valid and binding obligation of the related Obligor(s) thereunder and is enforceable in accordance with its terms, except only as such enforcement may be limited toby bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally; each party to such Contract had full legal capacity to execute and deliver such Contract and all applicable predatory other documents related thereto and abusive lending laws;to grant the security interest purported to be granted thereby; the terms of such Contract have not been waived, amended or modified in any respect, except by instruments that are part of the related Contract Documents, and no such waiver, amendment or modification has caused such Contract to fail to meet all of the representations, warranties and conditions, set forth herein with respect thereto.
(xi) Such Contract contains customary and enforceable provisions such as to render the rights and remedies of the holder or assignee thereof adequate for the practical realization against the collateral of the benefits of the security, subject, as to enforceability, to bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors' rights generally.
(xii) As of the Closing Date, (a) there was no default, breach, violation or event permitting acceleration existing under such Contract (except payment delinquencies permitted by subparagraph (v) above), (b) there does not exist any continuing condition that with notice or lapse of time would constitute a default, breach, violation or event permitting acceleration existing under such Contract, and (c) the Seller has not waived any such default, breach, violation or event permitting acceleration except payment delinquencies permitted by subparagraph (v) above.
(xiii) As of the Closing Date, Date each Transferred Mortgage Loan is a “qualified mortgage” within related Financed Vehicle will be covered by the meaning Blanket Insurance Policy; each of Section 860G Onyx and the Seller shall at all times comply with all of the Code and Treas. Reg. §1.860G-2 (determined without regard provisions of such insurance policy applicable to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation it so long as such insurance policy is a qualified mortgage for a temporary period);in effect.
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides (a) such Contract will require that the related Obligor(s) obtain and maintain in effect for interest other than at either the related Financed Vehicle a comprehensive and collision insurance policy (i) a single fixed rate in effect throughout an amount at least equal to the term lesser of (x) its maximum insurable value or (y) the Transferred Mortgage Loan or principal amount due from the related Obligor(s) under such Contract, (ii) naming Onyx as a loss payee and (iii) insuring against loss and damage due to fire, theft, transportation, collision and other risks generally covered by comprehensive and collision coverage and (b) the Servicer shall have put in place a vendor's single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term interest insurance policy providing coverage upon repossession of the Transferred Mortgage Loan;related Financed Vehicle in an amount equal to the lesser of the actual cash value of such Financed Vehicle, the cost of repair or replacement for such Financed Vehicle and the unpaid balance of the related Contract. Each of Onyx and the Seller shall at all times comply with all of the provisions of such insurance policies applicable to it.
(xv) Such Contract was acquired by Onyx from a Dealer with which it ordinarily does business, and no adverse selection procedures have been utilized in selecting such Contract from all other similar contracts purchased or originated by Onyx or any subsidiary.
(xvi) Payments under such Contract have been applied in accordance with the Rule of 78's Method, the Actuarial Method or the Simple Interest Method, as provided in the applicable Contract, and are due monthly in substantially equal amounts through its Maturity Date sufficient to fully amortize the principal balance of such Contract by its Maturity Date.
(xvii) There is only one original of such Contract and such original, together with all other related Contract Documents, is being held by the Custodian.
(xviii) As of the Closing Date, no Transferred Mortgage Loan the Servicer has clearly marked its electronic records to indicate that such Contract is owned by the subject of pending or final foreclosure proceedings;Issuer.
(xvixix) At the date of origination of the Contract, the original principal balance of such Contract was not greater than the purchase price to the related Obligor(s) (including taxes, warranties, licenses and related charges) of the related Financed Vehicle.
(xx) As of the Closing related Cut-Off Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would has not initiate foreclosure proceedings received notice that any Obligor under such Contract has filed for bankruptcy.
(xxi) Such Contract had an original maturity of not more than 72 months and as of the related Cut-Off Date, such Contract has a remaining maturity of 72 months or less;
(xxii) The first scheduled monthly payment for at least 80% of the Initial Contracts (by Outstanding Principal Balance) is due on or before May 31, 2003, and the first scheduled monthly payment for at least 90% of the Subsequent Contracts (by Outstanding Principal Balance) is due on or before June 30, 2003.
(xxiii) As of the related Cut-Off Date, such Contract has a remaining principal balance of at least $500.
(xxiv) As of the related Cut-Off Date, such Contract is secured by a Financed Vehicle that has not been repossessed without reinstatement.
(xxv) The related Obligor(s) were located in Alabama, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington or West Virginia on the date of origination of such Contract.
(xxvi) The Obligor on such Contract is either (a) a natural person residing in any state or (b) another entity, provided that a natural person is a joint and several Obligor with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;Contract.
(xviic) No Transferred Mortgage Loan As to all of the Funded Contracts:
(i) The aggregate Outstanding Principal Balance payable by Obligors of the Funded Contracts as of the related Cut-Off Date plus the initial deposit into the Prefunding Account equals the Original Pool Balance.
(ii) As of the related Cut-Off Date, approximately 26.38% of the Outstanding Principal Balance of all Funded Contracts is a “highattributable to loans involving new Financed Vehicles, and approximately 73.62% of the Outstanding Principal Balance of all Funded Contracts is attributable to loans involving used Financed Vehicles.
(iii) As of the related Cut-cost,” “high-cost home,” “covered,” “high-risk home” Off Date, the aggregate Outstanding Principal Balance of all Funded Contracts originated in any single state, other than California, did not equal or “predatory” loan under any exceed 10%.
(d) As to each Prefunded Contract (except as noted below as being applicable federalonly to either Precomputed Contracts or Simple Interest Contracts), state or local predatory or abusive lending law as of the related Prefunding Transfer Date (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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject except as otherwise noted):
(i) The information pertaining to such Contract set forth in the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.related Trans
Appears in 1 contract
Sources: Sale and Servicing Agreement (Onyx Acceptance Financial Corp)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing DateDate that:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each the Transferor with respect to the Transferred of Mortgage Loans in the applicable Transfer Agreement were made as of the date of transfer under such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable related Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi) and 1.04(b)(xx(xvii)) ), shall be the right to enforce the obligations of such the Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi) and 1.04(b)(xx(xvii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi) and 1.04(b)(xx(xvii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii), (xiv), (xv), (xvi) and (xvii)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such the Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such the Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-two year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ Mae or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a Transferred the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each In the case of approximately 91.80% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred such Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any In the case of approximately 91.80% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As will have a CLTV of 100% or less as of the Closing Date, each Transferred ;
(xii) Each Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 1.860G-2;
(determined without regard to Treas. Reg. §1.860G-2(fxiii) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)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;
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending law 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); no Transferred xv) No Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” was at the time of origination subject to the New Jersey Home Ownership Security and Equity Protection Act of 2003 1994 (N.J.S.A. 46:10B-22 et seq.15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law;
(xvi) The information set forth in the Prepayment Charge Schedules, included as part of the Mortgage Loan Schedules at Schedules A-1 and A-2 hereto (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure);
(xvii) In addition to the foregoing representations and warranties made in subparagraphs (i) through (xvi) of this Section 1.04(b), the Seller further represents and warrants upon delivery of the Pool 1 Mortgage Loans, as to each, that:
(a) No Pool 1 Mortgage Loan was originated in the State of Georgia;
(b) To the best of the Seller’s knowledge, no borrower was required to purchase any credit life, disability, accident or health insurance product as a condition of obtaining the extension of credit evidenced by the related Pool 1 Mortgage Loan. No borrower obtained a prepaid single premium credit life, disability, accident or health insurance policy in connection with the origination of the related Pool 1 Mortgage Loan; no Transferred proceeds from any Pool 1 Mortgage Loan is were used to purchase single premium credit insurance policies as part of the origination of, or as a “High-Cost Home condition to closing, such Pool 1 Mortgage Loan” subject to ;
(c) The applicable Servicer for each Pool 1 Mortgage Loan has fully furnished in the New Mexico Home Loan Protection Act (N.M.past
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Aames Mortgage Tr Mort Pas Thru Cert Sers 2003-1)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement;
(ii) The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix), 1.04(b)(xx) and 1.04(b)(xx(1.04)(b)(xxi)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix), 1.04(b)(xx) and 1.04(b)(xx1.04(b)(xxi) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix), 1.04(b)(xx) and 1.04(b)(xx1.04(b)(xxi)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s 's cost and expense, and on the Mortgagor’s 's failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor’s 's cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 1 contract
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of transfer of the related Mortgage Loans to the Bank pursuant to such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and or warranty (other than except in the case of a breach by the Seller of the these representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi) and 1.04(b)(xx)(xvii) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi) and 1.04(b)(xx(xvii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi) and 1.04(b)(xx(xvii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of these representations and warranties made pursuant to Sections 1.04(b)(xiii), (xiv) and (xv)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement[Reserved];
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first junior lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) senior liens of such Mortgage, (2) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (23) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (34) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first second lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy[Reserved];
(viii) To the best of the Seller’s knowledge, no No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xi) Each Transferred Mortgage Loan will have a CLTV of 100% or less as of the Closing Date;
(xii) Each Transferred Mortgage Loan at the time it was made complied in all material respects with applicable local, state, and federal laws including, but not limited that is secured by residential real property (or a leasehold interest therein) has a loan-to, all applicable predatory and abusive lending laws;
-value ratio of 100% or less (xiii) As by Scheduled Principal Balance as of the Closing Cut-off Date, each Transferred ). Each Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 1.860G-2;
(determined without regard to Treas. Reg. §1.860G-2(fxiii) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)Each Transferred Mortgage Loan at the time it was originated, complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable local, state and federal predatory and abusive lending laws;
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no No Transferred Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing DateStandard & Poor’s LEVELSâ Glossary, based on delinquencies Version 5.6 Revised, Appendix E, in payment effect on the Transferred Mortgage Loansdate hereof. In addition, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No no Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home,” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no ;
(xv) No Transferred Mortgage Loan was originated (or modified) on or after November 27October 1, 2002 through March 6, 2003 which is secured by a “High-Cost Home Loan” mortgaged property located in Georgia;
(xvi) No Transferred Mortgage Loan was at the time of origination subject to the New Jersey Home Ownership Security and Equity Protection Act of 2003 1994 (N.J.S.A. 46:10B-22 et seq15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law; and
(xvii) The information set forth in the Prepayment Charge Schedules, included as part of the Mortgage Loan Schedules at Schedules A-1 and A-2 hereto (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure). It is understood and agreed that the representations and warranties set forth in Section 1.04(b) and 1.04(c) herein shall survive the Closing Date. Upon discovery by either the Seller or the Depositor of a breach of any of the foregoing representations and warranties (excluding a breach of subparagraph (xvii) under Section 1.04(b)) that adversely and materially affects the value of the related Mortgage Loan and that does not also constitute a breach of a representation or warranty of a Transferor in the related Transfer Agreement, the party discovering such breach shall give prompt written notice to the other party; provided, however, that notwithstanding anything to the contrary herein, this paragraph shall be specifically applicable to a breach by the Seller of the representations made pursuant to subparagraphs (xiii), (xiv) and (xv) of Section 1.04(b) irrespective of a Transferor’s breach of a comparable representation or warranty made in the related Transfer Agreement. Within 60 days of the discovery of any such breach, the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Depositor at the applicable Purchase Price or (c) within the two-year period following the Closing Date, substitute a Qualifying Substitute Mortgage Loan for the affected Mortgage Loan.
(c) In addition to the representations and warranties set forth in Section 1.04(b); , all of which are also made by the Seller with respect to the Bank Originated Mortgage Loans as of the Cut-off Date, the Seller hereby further represents and warrants to the Depositor upon the delivery to the Depositor on the Closing Date of any Bank Originated Mortgage Loans, but solely as to each Bank Originated Mortgage Loan, that, as of the Cut-off Date:
(i) With respect to any hazard insurance policy covering a Bank Originated Mortgage Loan and the related Mortgaged Property, the Seller has not engaged in, and has no Transferred knowledge of the Bank’s or the borrower’s having engaged in, any act or omission which would impair the coverage of any such policy, the benefits of the endorsement provided for therein, 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;
(ii) Neither the Seller nor the Bank has waived the performance by the borrower of any action, if the Mortgagor’s failure to perform such action would cause a Bank Originated Mortgage Loan to be in default, nor has the Seller or the Bank waived any default resulting from any action or inaction by the borrower;
(iii) 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, if necessary to protect the interests of the Depositor and which has been delivered to the related Custodian;
(iv) The Mortgaged Property relating to each Bank Originated Mortgage Loan is a “Highfee simple property located in the state identified in the Mortgage Loan Schedule and consists of a parcel of real property with a detached single family residence erected thereon, or a two- to four-Cost Home Loan” subject to family dwelling, or an individual condominium unit in a low-rise condominium project, or an individual unit in a planned unit development; provided, however, that any condominium project or planned unit development shall conform with the New Mexico Home Loan Protection Act (N.M.applicable ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac requirements regarding such dwellings. No portion of the Mortgaged Property is used fo
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp 2005-S2)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement;
(ii) The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule (including the prepayment schedule) is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred Mortgage Loan (and the prepayment premium associated with such Transferred Mortgage Loan) at the time it was made complied in all material respects with, and was enforceable in accordance with its terms under, applicable local, state, and federal laws including, but not limited to, all applicable predatory and abusive lending lawslaws (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure);
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.no
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust Series 2007-20n)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each the Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such the Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a the Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xiii) through (xviii)), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such the Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xiii) and 1.04(b)(xxthrough (xviii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xiii) and 1.04(b)(xxthrough (xviii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii) through (xviii)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such the Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such the Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ Mae or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a Transferred the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each In the case of approximately 96.14% and 3.86% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien or second lien, respectively, on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) the first Mortgage, in the case of Mortgaged Property that is secured by a perfected second lien, (2) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (23) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred such Mortgage Loan, and (34) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any In the case of approximately 96.14% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(x) [Reserved];
(xi) Each Transferred Mortgage Loan was originated by will have a savings and loan association, savings bank, commercial bank, credit union, insurance company CLTV of 100% 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 less as of the National Housing ActClosing Date;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxiii) As of the Closing Date, other than with respect to Retained Interest, no Transferred Each Mortgage Loan provides for interest other than at either 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, abusive and fair lending laws; and, specifically, (ia) a single fixed rate in effect throughout the term of the Transferred no Mortgage Loan or (ii) secured by a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) Mortgaged Property located in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 New Jersey is a “High-Cost Home Loan” subject to as defined in the New Jersey Home Ownership Security Act of effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.); (b) no Transferred Mortgage Loan secured by a Mortgaged Property located in New Mexico is a “High-Cost Home Loan” subject to as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Sasco 2006-Am1)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each the Transferor with respect to made in Section 7 of the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such transfer of the Mortgage Loans to the Bank pursuant to the Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a the Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xi) and 1.04(b)(xx)1.04(b)(xiii) shall be the right to enforce the obligations of such the Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xi) and 1.04(b)(xx1.04(b)(xiii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xi) and 1.04(b)(xx1.04(b)(xiii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such the Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such the Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, Date with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;.
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first second lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) any senior lien on the related Mortgaged Property, (2) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (23) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred such Mortgage Loan, Loan and (34) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred Mortgage Loan at the time it was made complied in all material respects with applicable local, state, state and federal laws laws, including, but not limited to, all applicable predatory and abusive lending laws;
(xiiixii) As of the Closing Date, each Transferred Each Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xviixiii) No Transferred Mortgage Loan is a Loans are “high-high cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan loans under any applicable federal, state or local predatory or abusive lending law legislation;
(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); no Transferred xiv) The information set forth in the Prepayment Charge Schedule included as part of the Mortgage Loan originated Schedule at Schedule A hereto (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or after November 27, 2003 dates on which such information is a “High-Cost Home Loan” subject furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the New Jersey Home Ownership Security Act of 2003 extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure) under applicable state law; and
(N.J.S.A. 46:10B-22 et seq.); no Transferred xv) Each Mortgage Loan will have a CLTV of 100% or less as of the Closing Date. It is understood and agreed that the representations and warranties set forth in Section 1.04(b) herein shall survive the Closing Date and any Transfer Date. Upon discovery by either the Seller or the Depositor of a “High-Cost Home Loan” subject breach of any of the foregoing representations and warranties (excluding a breach of subparagraph (xiv) under Section 1.04(b)) that adversely and materially affects the value of the related Mortgage Loan and that does not also constitute a breach of a representation or warranty of the Transferor in the Transfer Agreement, the party discovering such breach shall give prompt written notice to the New Mexico Home other party; provided, however, that notwithstanding anything to the contrary herein, this paragraph shall be specifically applicable to a breach by the Seller of the representations made pursuant to subparagraphs (xi) and (xiii) of Section 1.04(b) irrespective of the Transferor’s breach of a comparable representation or warranty in the Transfer Agreement Within 60 days of the discovery of any such breach, the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan Protection Act or any property acquired in respect thereof from the Depositor at the applicable Purchase Price or (N.M.c) within the two-year period following the Closing Date, substitute a Qualifying Substitute Mortgage Loan for the affected Mortgage Loan.
(c) Notwithstanding the second paragraph of Section 1.04(b), in connection with the Seller’s representations and warranties made in subparagraph (xiv) of Section 1.04(b), within 90 days of the earlier of discovery by the Seller or receipt of notice from the Servicer of a breach of any representation and warranty of the Seller made in subparagraph
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (First Franklin Mortgage Loan Trust 2003-FFB)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Mortgage Loan or a Subsequent Transferred Mortgage Loan (together, the “Transferred Mortgage Loans”) constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xiii) and (xiv)), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xiii) and 1.04(b)(xx(xiv) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xiii) and 1.04(b)(xx(xiv)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii) and (xiv)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date or any Transfer Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ ▇▇▇ or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a Transferred the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each In the case of approximately [____]% of the Mortgage Loans (by Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any In the case of approximately [____]% of the Mortgage Loans (by Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Indenture Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Indenture Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Except with respect to approximately [____]% of the Mortgage Loans, each Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xi) Each Mortgage Loan is a debt instrument that satisfies the requirements of Section 860L(c)(i)(B) of the Code;
(xii) Each Transferred Mortgage Loan at the time it was made complied in all material respects with applicable local, state, state and federal laws laws, including, but not limited to, all applicable predatory and abusive lending laws;; and
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending law law.
(c) Reserved
(d) With respect to any of the foregoing representations and warranties made in subparagraphs (xiii) or (xiv) of Section 1.04(b), a similarly classified loan using different terminology under a law imposing heightened regulatory scrutiny breach of any such representations or additional legal liability for residential mortgage loans having high interest rates, points and/or fees); no Transferred warranties shall be deemed to materially and adversely affect the value of the affected Mortgage Loan originated on and the interests of Securityholders therein, irrespective of the Seller’s knowledge of such breach. It is understood and agreed that the representations and warranties set forth in Sections 1.04(b) herein shall survive the Closing Date. Upon discovery by either the Seller or after November 27the Depositor of a breach of any of the foregoing representations and warranties that adversely and materially affects the value of the related Mortgage Loan and that does not also constitute a breach of a representation or warranty of a Transferor in the related Transfer Agreement, 2003 is a “High-Cost Home Loan” subject the party discovering such breach shall give prompt written notice to the New Jersey Home Ownership Security Act other party; provided, however, that notwithstanding anything to the contrary herein, this paragraph shall be specifically applicable to a breach by the Seller of 2003 the representations made pursuant to subparagraphs (N.J.S.A. 46:10B-22 et seq.); no Transferred xiii) and (xiv) of Section 1.04(b) irrespective of the Transferor’s breach of a comparable representation or warranty made in the related Transfer Agreement. Within 60 days of the discovery of any such breach, the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan is or any property acquired in respect thereof from the Depositor at the applicable Purchase Price or Transfer Price (as set forth in the related Transfer Supplement) or (c) within the two-year period following the Closing Date or any Transfer Date, as applicable, substitute a “High-Cost Home Qualifying Substitute Mortgage Loan for the affected Mortgage Loan” subject to the New Mexico Home Loan Protection Act (N.M..
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement and this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each the Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such the Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a the Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xiii) through (xviii)), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such the Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xiii) through (xviii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xiii) and 1.04(b)(xxthrough (xviii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii) through (xviii)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such the Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such the Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ ▇▇▇ or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a Transferred the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each In the case of all of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred such Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any In the case of all of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(x) [Reserved];
(xi) Each Transferred Mortgage Loan was originated by will have a savings and loan association, savings bank, commercial bank, credit union, insurance company LTV of 100% 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 less as of the National Housing ActClosing Date;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 1.860G-2;
(determined without regard to Treas. Reg. §1.860G-2(fxiii) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)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;
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred No Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Datethen current Standard & Poor’s LEVELS® Glossary, based on delinquencies in payment on the Transferred Mortgage Loanswhich is now Version 5.6c Revised, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Appendix E. In addition, no Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred ;
(xv) No Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law;
(xvi) The information set forth in the Prepayment Charge Schedule, included as part of the Mortgage Loan Schedule at Schedule A hereto (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure);
(xvii) No Mortgage Loan was originated (or modified) on or after October 1, 2002 through March 7, 2003 which is secured by a mortgaged property located in Georgia;
(xviii) In addition to the foregoing representations and warranties made in subparagraphs (i) through (xvii) of this Section 1.04(b), the Seller further represents and warrants upon delivery of the Pool 1 Mortgage Loans, as to each such Mortgage Loan, that:
(a) The outstanding Scheduled Principal Balance of each Pool 1 Mortgage Loan does not exceed the applicable maximum original loan amount limitations with respect to first lien one-to-four family residential mortgage loans as set forth in the ▇▇▇▇▇▇▇ Mac Selling Guide;
(b) There is no Pool 1 Mortgage Loan that was originated on or after November 27March 7, 2003 which is a “High-Cost Home Loanhigh cost home loan” subject as defined under the Georgia Fair Lending Act;
(c) To the best of the Seller’s knowledge, no borrower was required to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is purchase any credit life, mortgage, disability, accident, unemployment or health insurance product or debt cancellation agreement as a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.cond
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (First Franklin Mortgage Loan Trust 2006-Ff2)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and or warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xi) and 1.04(b)(xx)1.04(b)(xii) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xi) and 1.04(b)(xx1.04(b)(xii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xi) and 1.04(b)(xx1.04(b)(xii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty (other than the representations and warranties made pursuant to Sections 1.04(b)(xi) and 1.04(b)(xii)) made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, with a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any a Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred Mortgage Loan Loan, at the time it was made originated, complied in all material respects with applicable local, state, state and federal laws laws, including, but not limited to, all applicable local, state and federal predatory and abusive lending laws;
(xii) None of the Transferred Mortgage Loans are “high-cost” loans under any applicable federal, state or local predatory or abusive lending law;
(xiii) As of the Closing Date, each Each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);1.860G-2; and
(xiv) As Each Mortgage Loan that is secured by one- to four-family residential real property (or a leasehold interest therein) has a loan-to-value ratio of 125% or less (by principal balance as of the Cut-off Date), and each Mortgage Loan that is secured by manufactured housing has a loan-to-value ratio of 100% or less (by principal balance as of the Cut-off Date).
(c) In addition to the representations and warranties set forth in Section 1.04(b), all of which are also made by the Seller with respect to the Bank Originated Mortgage Loans as of the Cut-off Date, the Seller hereby further represents and warrants to the Depositor upon the delivery to the Depositor on the Closing Date of any Bank Originated Mortgage Loans, but solely as to each Bank Originated Mortgage Loan, that, as of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either :
(i) With respect to any hazard insurance policy covering a single fixed rate in effect throughout Bank Originated Mortgage Loan and the term related Mortgaged Property, the Seller has not engaged in, and has no knowledge of the Transferred Mortgage Loan Bank’s or 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 therein, 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;
(ii) Neither the Seller nor the Bank has waived the performance by the Mortgagor of any action, if the Mortgagor’s failure to perform such action would cause a single “variable rate” (within Bank Originated Mortgage Loan to be in default, nor has the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout Seller or the term of Bank waived any default resulting from any action or inaction by the Transferred Mortgage LoanMortgagor;
(xviii) As The terms of the Closing DateMortgage Note and Mortgage have not been impaired, no Transferred Mortgage Loan is waived, altered or modified in any respect, except by a written instrument which has been recorded, if necessary to protect the subject interests of pending or final foreclosure proceedingsthe Depositor and which has been delivered to the Custodian;
(xviiv) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect The Mortgaged Property relating to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.each Bank Originated Mort
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Asset Sec Corp Mor Pass THR Cer Ser 2003-35)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date, May 28, 2004:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement;
(ii) The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xi), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix(xvi) and 1.04(b)(xx(xvii)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xi), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix(xvi) and 1.04(b)(xx(xvii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xi), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix(xvi) and 1.04(b)(xx(xvii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date(or as of such other date as may be specified in particular representations and warranties), as to each, thatthat as of May 28, 2004:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.current
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp)
Representations and Warranties of the Seller. (a) The Seller hereby represents makes the following representations and warrants warranties on which (i) the Issuer is deemed to have relied in acquiring the Depositor that Contracts and (ii) the Insurer is deemed to have relied in issuing the Policy; provided such representations and warranties speak as of the execution and delivery of this Agreement and as of the Closing DateDate with respect to Sections 2.02(a), (b) and (c), and as of each Prefunding Transfer Date (with respect to the Prefunded Contracts conveyed to the Trust on such date) with respect to Sections 2.02(a) and (d), but shall survive the sale, transfer and assignment of the Contracts to the Issuer and the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) As to the Seller:
(i) The Seller is duly organized and validly existing as a corporation duly organized, validly organized and existing and in good standing under the laws governing its creation and existence and has full corporate of the State of Delaware, with power and authority to own its property, properties and to carry on conduct its business as presently conductedand had at all relevant times, and has, power, authority, and legal right to enter into originate or acquire and perform its obligations under this Agreement and own the Assignment and Assumption Agreement;Contracts.
(ii) The execution Seller is duly qualified to do business as a foreign corporation in good standing, and delivery shall have obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications.
(iii) The Seller has the power and authority to execute and deliver this Agreement and to carry out its terms; the Seller has full power and authority to sell and assign the property to be sold and assigned to and deposited with the Issuer and has duly authorized such sale and assignment to the Issuer by all necessary corporate action; and the execution, delivery, and performance of this Agreement has been duly authorized by the Seller by all necessary corporate action.
(iv) This Agreement constitutes (A) a valid sale, transfer, and assignment of the Contracts, enforceable against creditors of and purchasers from the Seller and (B) a legal, valid, and binding obligation of the Seller enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or at law.
(v) The consummation of the transactions contemplated by this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part fulfillment of the Seller; neither terms hereof shall not conflict with, result in any breach of any of the execution terms and delivery of this Agreement or the Assignment and Assumption Agreementprovisions of, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict constitute (with or result in a breach of, without notice or constitute lapse of time) a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
, or any indenture, agreement, or other instrument to which the Seller is a party or by which it shall be bound; nor result in the creation or imposition of any Lien upon any of the properties of the Seller pursuant to the terms of any such indenture, agreement, or other instrument (iii) The executionother than pursuant to the Basic Documents to which the Seller is a party); nor violate any law or any order, delivery and performance by rule, or regulation applicable to the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent any court or approval of, the giving of notice to, the registration with, or the taking of any other action in respect offederal or state regulatory body, any stateadministrative agency, federal or other governmental authority instrumentality having jurisdiction over the Seller or its properties.
(vi) To the Seller's best knowledge after due inquiry, there are no proceedings or investigations pending, or threatened, before any court, regulatory body, administrative agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by other governmental instrumentality having jurisdiction over the Seller and, assuming due authorization, execution and delivery by or its properties: (A) asserting the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case invalidity of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective termsNotes, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, seeking to prevent the knowledge issuance of the Seller, threatened Notes or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to consummation of any of the transactions contemplated by this Agreement Agreement, (C) seeking any determination or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller ruling that might materially and adversely affect it or the performance by the Seller of its business, assets, operations or condition, financial or otherwiseobligations under, or the validity or enforceability of, this Agreement, the Notes, or (D) naming the Seller which might adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreementfederal income tax attributes of the Notes.
(b) The representations and warranties of As to each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made Funded Contract (except as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are noted below as being applicable only to facts, conditions either Precomputed Contracts or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:Simple Interest Contracts):
(i) The information pertaining to such Contract set forth with respect to in the Transferred Mortgage Loans on the Mortgage Loan related Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is Contracts was true and correct in all material respects at the date or dates respecting which such information is given;Closing Date.
(ii) There are no defaults As of the Closing Date, such Contract was secured by a valid and enforceable first priority security interest in favor of Onyx in the related Financed Vehicle, and such security interest has been duly perfected and is prior to all other liens upon and security interests in such Financed Vehicle which now exist or may hereafter arise or be created (other than delinquency except, as to priority, for any lien for unpaid taxes or unpaid storage or repair charges which may arise after the Closing Date in payment) in complying accordance with the terms of any MortgageUCC); such security interest is assignable, and had been assigned by Onyx to the Seller pursuant to the Purchase Agreement, and, as of the Closing Date, has no notice as been assigned by the Seller to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;the Issuer pursuant to Section 2.01(a) hereof.
(iiiA) Except If the related Contract was originated in a state in which notation of a security interest on the Title Document (or in the case of Cooperative Loanselectronic title records) is required or permitted to perfect the security interest in the related Financed Vehicle, the Title Document or the electronic title records for such Financed Vehicle shows, or, if anya new or replacement Title Document is being applied for with respect to such Financed Vehicle, each Mortgage requires all buildings or other improvements on the Title Document will be received within 180 days of the Closing Date and will show, Onyx named as the original secured party under the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards Contract as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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 a first priority security interest in such insurance at such Mortgagor’s cost and expenseFinanced Vehicle, and (B) if the related Contract was originated in a state in which the filing of a financing statement under the UCC is required to seek reimbursement therefor perfect a security interest in motor vehicles, such filings or recordings have been duly made and show Onyx named as the original secured party under the related Contract, and in either case, the Indenture Trustee on behalf of the Noteholders and the Insurer has the same rights as such secured party has or would have (if such secured party were still the owner of such Contract) against all parties claiming an interest in such Financed Vehicle. With respect to each Contract for which the Title Document has not yet been returned from the Mortgagor. Where required by state law Registrar of Titles (or regulationevidenced in the electronic title records), each Mortgagor Onyx has written evidence that such Title Documents showing Onyx as first lienholder have 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;applied for.
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien As of the MortgageClosing Date, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, to and has full right was the sole owner of each such Contract to transfer and sell each Transferred Mortgage Loan be transferred to the Depositor Issuer pursuant to Section 2.01 free of liens, claims, encumbrances and clearrights of others and, except as described upon transfer of such Contract to the Issuer pursuant to Section 2.01, the Issuer will have good and marketable title to, will have a first priority perfected security interest in paragraph and will be the sole owner of such Contract free of liens, encumbrances and rights of others.
(v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder As of the related MortgageCut-Off Date, including the Sellermost recent scheduled payment due on each such Contract had been made or was not delinquent more than 30 days and, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To to the best of the Seller’s 's knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loanall payments on the Contract were made by the related Obligors.
(ixvi) There As of the Closing Date, there is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, lien against the related cooperative unitFinanced Vehicle for delinquent taxes.
(vii) and each such property As of the Closing Date, there is undamaged by wasteno right of rescission, fireoffset, earthquake defense or earth movement, windstorm, flood, tornado or other casualty, so as counterclaim to have a material adverse effect on the value obligation of the related Mortgaged Property as security for Obligor(s) to pay the related Transferred Mortgage Loan unpaid principal or interest due under such Contract; the operation of the terms of such Contract or the use for which exercise of any right thereunder will not render such Contract unenforceable in whole or in part or subject such Contract to any right of rescission, offset, defense or counterclaim, and the premises were intended;Seller has no knowledge that such right of rescission, offset, defense or counterclaim has been asserted or threatened.
(xviii) There As of the Closing Date, to the best of the Seller's knowledge, there are no mechanics’ or similar liens or claims which have been filed filed, including liens for work, labor labor, material, storage or material (and no rights are outstanding that under the law could give rise to such liens) unpaid taxes affecting the related Mortgaged Property Financed Vehicle which are or may be liens become a lien prior to, or equal or coordinate with, the lien security interest granted by such Contract.
(ix) Such Contract, and the sale of the related Mortgage;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan associationFinanced Vehicle sold thereunder, savings bankcomplied, commercial bank, credit union, 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;
(xii) Each Transferred Mortgage Loan at the time it was made complied made, in all material respects with all applicable localfederal, statestate and local laws (and regulations thereunder), including without limitation usury, equal credit opportunity, fair credit reporting, truth-in-lending or other similar laws, the Federal Trade Commission Act, the Fair Debt Collection Practices Act, the Fair Credit Billing Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal Reserve Board's Regulations B and Z, the Soldiers' and Sailors' Civil Relief Act of 1940, state adoptions of the National Consumer Act and the Uniform Consumer Credit Code, and federal other applicable state laws regulating retail installment sales contracts and loans in general and motor vehicle retail installment contracts and loans in particular; and the consummation of the transactions herein contemplated, including, but without limitation, the transfer of ownership of such Contracts to the Issuer and the receipt of interest by the Noteholders, will not violate any applicable federal, state or local law.
(x) Such Contract is the legal, valid and binding obligation of the related Obligor(s) thereunder and is enforceable in accordance with its terms, except only as such enforcement may be limited toby bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally; each party to such Contract had full legal capacity to execute and deliver such Contract and all applicable predatory other documents related thereto and abusive lending laws;to grant the security interest purported to be granted thereby; the terms of such Contract have not been waived, amended or modified in any respect, except by instruments that are part of the related Contract Documents, and no such waiver, amendment or modification has caused such Contract to fail to meet all of the representations, warranties and conditions, set forth herein with respect thereto.
(xi) Such Contract contains customary and enforceable provisions such as to render the rights and remedies of the holder or assignee thereof adequate for the practical realization against the collateral of the benefits of the security, subject, as to enforceability, to bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors' rights generally.
(xii) As of the Closing Date, (a) there was no default, breach, violation or event permitting acceleration existing under such Contract (except payment delinquencies permitted by subparagraph (v) above), (b) there does not exist any continuing condition that with notice or lapse of time would constitute a default, breach, violation or event permitting acceleration existing under such Contract, and (c) the Seller has not waived any such default, breach, violation or event permitting acceleration except payment delinquencies permitted by subparagraph (v) above.
(xiii) As of the Closing Date, Date each Transferred Mortgage Loan is a “qualified mortgage” within related Financed Vehicle will be covered by the meaning Blanket Insurance Policy; each of Section 860G Onyx and the Seller shall at all times comply with all of the Code and Treas. Reg. §1.860G-2 (determined without regard provisions of such insurance policy applicable to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation it so long as such insurance policy is a qualified mortgage for a temporary period);in effect.
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides (a) such Contract will require that the related Obligor(s) obtain and maintain in effect for interest other than at either the related Financed Vehicle a comprehensive and collision insurance policy (i) a single fixed rate in effect throughout an amount at least equal to the term lesser of (x) its maximum insurable value or (y) the Transferred Mortgage Loan or principal amount due from the related Obligor(s) under such Contract, (ii) naming Onyx as a loss payee and (iii) insuring against loss and damage due to fire, theft, transportation, collision and other risks generally covered by comprehensive and collision coverage and (b) the Servicer shall have put in place a vendor's single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term interest insurance policy providing coverage upon repossession of the Transferred Mortgage Loan;related Financed Vehicle in an amount equal to the lesser of the actual cash value of such Financed Vehicle, the cost of repair or replacement for such Financed Vehicle and the unpaid balance of the related Contract. Each of Onyx and the Seller shall at all times comply with all of the provisions of such insurance policies applicable to it.
(xv) Such Contract was acquired by Onyx from a Dealer with which it ordinarily does business, and no adverse selection procedures have been utilized in selecting such Contract from all other similar contracts purchased or originated by Onyx or any subsidiary.
(xvi) Payments under such Contract have been applied in accordance with the Rule of 78's Method, the Actuarial Method or the Simple Interest Method, as provided in the applicable Contract, and are due monthly in substantially equal amounts through its Maturity Date sufficient to fully amortize the principal balance of such Contract by its Maturity Date.
(xvii) There is only one original of such Contract and such original, together with all other related Contract Documents, is being held by the Custodian.
(xviii) As of the Closing Date, no Transferred Mortgage Loan the Servicer has clearly marked its electronic records to indicate that such Contract is owned by the subject of pending or final foreclosure proceedings;Issuer.
(xvixix) At the date of origination of the Contract, the original principal balance of such Contract was not greater than the purchase price to the related Obligor(s) (including taxes, warranties, licenses and related charges) of the related Financed Vehicle.
(xx) As of the Closing related Cut-Off Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would has not initiate foreclosure proceedings received notice that any Obligor under such Contract has filed for bankruptcy.
(xxi) Such Contract had an original maturity of not more than 72 months and as of the related Cut-Off Date, such Contract has a remaining maturity of 72 months or less;
(xxii) The first scheduled monthly payment for at least 80% of the Initial Contracts (by Outstanding Principal Balance) is due on or before July 31, 2002, and the first scheduled monthly payment for at least 90% of the Subsequent Contracts (by Outstanding Principal Balance) is due on or before August 31, 2002.
(xxiii) As of the related Cut-Off Date, such Contract has a remaining principal balance of at least $500.
(xxiv) As of the related Cut-Off Date, such Contract is secured by a Financed Vehicle that has not been repossessed without reinstatement.
(xxv) The related Obligor(s) were located in Alabama, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, North Carolina, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, Washington or West Virginia on the date of origination of such Contract.
(xxvi) The Obligor on such Contract is either (a) a natural person residing in any state or (b) another entity, provided that a natural person is a joint and several Obligor with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;Contract.
(xviic) No Transferred Mortgage Loan As to all of the Funded Contracts:
(i) The aggregate Outstanding Principal Balance payable by Obligors of the Funded Contracts as of the related Cut-Off Date plus the initial deposit into the Prefunding Account equals the Original Pool Balance.
(ii) As of the related Cut-Off Date, approximately 29.43% of the Outstanding Principal Balance of all Funded Contracts is a “highattributable to loans involving new Financed Vehicles, and approximately 70.57% of the Outstanding Principal Balance of all Funded Contracts is attributable to loans involving used Financed Vehicles.
(iii) As of the related Cut-cost,” “high-cost home,” “covered,” “high-risk home” Off Date, the aggregate Outstanding Principal Balance of all Funded Contracts originated in any single state, other than California, did not equal or “predatory” loan under any exceed 10%.
(d) As to each Prefunded Contract (except as noted below as being applicable federalonly to either Precomputed Contracts or Simple Interest Contracts), state or local predatory or abusive lending law as of the related Prefunding Transfer Date (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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject except as otherwise noted):
(i) The information pertaining to such Contract set forth in the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.related Transfer Certificate i
Appears in 1 contract
Sources: Sale and Servicing Agreement (Onyx Acceptance Financial Corp)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as Purchaser that:
a) the Seller is the sole and exclusive recorded, and direct and beneficial owner of one hundred percent (100%) right, title and interest in and to the NL Property, subject to the rights, title and interest of the Closing Date:Purchaser in the Nivloc Agreements, to Seller’s knowledge, after reasonable and diligent inquiry, free and clear of all liens, charges and encumbrances of whatsoever nature, save and except for rights of the United States of America in the unpatented NL Claims;
(ib) The Seller is a corporation the NL Property claims have been validly located and are now duly organized, validly existing recorded and in good standing under in accordance with the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conductedin effect in Nevada, and to enter under applicable federal laws, rules and regulations;
c) entering into and perform its obligations under this Agreement and the Assignment and Assumption Agreement;
(ii) The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreementdoes not conflict with any applicable law, nor the consummation of the transactions herein or therein contemplateddoes it conflict with, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, accelerate the performance required by any of the provisions of any law, governmental rule, regulation, judgment, decree contract or order binding on other commitment to which the Seller is party or its properties or the certificate of incorporation or bylaws of the Sellerby which it is bound;
(iiid) The execution, delivery and performance by the Seller of has the full corporate and legal power and authority, and exclusive right to enter into this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and to sell to the DepositorPurchaser, one hundred percent (100%) of its right, title and interest in and to the Total Property Interests, specifically including the NL Property, the Royalty Rights and the IMMI Claims Option and any and all of Seller’s right, title and interest in any proceeds from any sale of minerals, metals, ores or concentrates (the “Products”) mined and/or removed from or under the NL Property and to assign one hundred percent (100%) of Seller’s right, title and interest in and to the NL Property and in and to the Royalty Rights, and in and to any and all Products mined and/or removed from or under the NL Property, in accordance with the case terms and conditions of this Agreement, constitutes a valid subject to any taxes, and binding obligation subject to any State of Nevada and/or federal law, rule or regulation;
e) work and activities on the NL Property previously carried out by or on behalf of the Seller enforceable has been completed in compliance with all applicable federal, state and local laws, rules, orders and regulations and the Seller agrees to save the Purchaser harmless from and against it any loss, liability, claim, demand, damage, expense, injury or death arising out of or in accordance connection with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement operations or activities which were carried out by or on behalf of the rights Seller on the NL Property, including any violation of creditors generally any environmental law, rule or regulation, but excluding any and (B) general principles all work carried out by or on behalf of equity regardless the Purchaser, prior to the Closing date of whether such enforcement is considered in a proceeding in equity or at lawthis Agreement; and
(vf) There are no actions, suits or proceedings pending or, the Seller has made and will continue to make available to the knowledge Purchaser, at the expense of the Seller, threatened all data, information and material directly relating to the mining work and activities performed by or likely to be asserted against or affecting on behalf of the Seller, before or by predecessors in interests in the NL Property, including any courtand all such data, administrative agency, arbitrator or governmental body (A) with respect information and material relating to any the potential economic mineralization and mining of the transactions contemplated by this Agreement or NL Property. Within 10 days following the Assignment Closing, Purchaser shall pick up all of Seller’s drill cuttings and Assumption Agreement or (B) with respect core samples related to any other matter which in the judgment NL Property, provided there are no complications arising from location of the Seller will be determined adversely to the Seller cuttings and will if determined adversely to the Seller materially and adversely affect it or its businesssamples, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreementweather and/or transportation.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Infrastructure Materials Corp.)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing DateDate that:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement;
(ii) The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xi) and 1.04(b)(xx1.04(b)(xvi) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xi) and 1.04(b)(xx1.04(b)(xvi)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (other than the representations and warranties made pursuant to Sections 1.04(b)(xi) and 1.04(b)(xvi)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date(or as of such other date as may be specified in particular representations and warranties), as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s 's cost and expense, and on the Mortgagor’s 's failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor’s 's cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp)
Representations and Warranties of the Seller. (a) The Seller hereby represents makes the following representations and warrants warranties on which (i) the Issuer is deemed to have relied in acquiring the Depositor that Contracts and (ii) the Insurer is deemed to have relied in issuing the Policy; provided such representations and warranties speak as of the execution and delivery of this Agreement and as of the Closing DateDate with respect to Sections 2.02(a), (b) and (c), and as of each Prefunding Transfer Date (with respect to the Prefunded Contracts conveyed to the Trust on such date) with respect to Sections 2.02(a) and (d), but shall survive the sale, transfer and assignment of the Contracts to the Issuer and the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) As to the Seller:
(i) The Seller is duly organized and validly existing as a corporation duly organized, validly organized and existing and in good standing under the laws governing its creation and existence and has full corporate of the State of Delaware, with power and authority to own its property, properties and to carry on conduct its business as presently conductedand had at all relevant times, and has, power, authority, and legal right to enter into originate or acquire and perform its obligations under this Agreement and own the Assignment and Assumption Agreement;Contracts.
(ii) The execution Seller is duly qualified to do business as a foreign corporation in good standing, and delivery shall have obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications.
(iii) The Seller has the power and authority to execute and deliver this Agreement and to carry out its terms; the Seller has full power and authority to sell and assign the property to be sold and assigned to and deposited with the Issuer and has duly authorized such sale and assignment to the Issuer by all necessary corporate action; and the execution, delivery, and performance of this Agreement has been duly authorized by the Seller by all necessary corporate action.
(iv) This Agreement constitutes (A) a valid sale, transfer, and assignment of the Funded Contracts, enforceable against creditors of and purchasers from the Seller and (B) a legal, valid, and binding obligation of the Seller enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or at law.
(v) The consummation of the transactions contemplated by this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part fulfillment of the Seller; neither terms hereof shall not conflict with, result in any breach of any of the execution terms and delivery of this Agreement or the Assignment and Assumption Agreementprovisions of, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict constitute (with or result in a breach of, without notice or constitute lapse of time) a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
, or any indenture, agreement, or other instrument to which the Seller is a party or by which it shall be bound; nor result in the creation or imposition of any Lien upon any of the properties of the Seller pursuant to the terms of any such indenture, agreement, or other instrument (iii) The executionother than pursuant to the Basic Documents to which the Seller is a party); nor violate any law or any order, delivery and performance by rule, or regulation applicable to the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent any court or approval of, the giving of notice to, the registration with, or the taking of any other action in respect offederal or state regulatory body, any stateadministrative agency, federal or other governmental authority instrumentality having jurisdiction over the Seller or its properties.
(vi) To the Seller's best knowledge after due inquiry, there are no proceedings or investigations pending, or threatened, before any court, regulatory body, administrative agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by other governmental instrumentality having jurisdiction over the Seller and, assuming due authorization, execution and delivery by or its properties: (A) asserting the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case invalidity of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective termsNotes or the Certificates, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, seeking to prevent the knowledge issuance of the Seller, threatened Notes or likely to be asserted against the Certificates or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to consummation of any of the transactions contemplated by this Agreement Agreement, (C) seeking any determination or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller ruling that might materially and adversely affect it or the performance by the Seller of its business, assets, operations or condition, financial or otherwiseobligations under, or the validity or enforceability of, this Agreement, the Notes or the Certificates, or (D) naming the Seller which might adversely affect its ability to perform its obligations under this Agreement the federal income tax attributes of the Notes or the Assignment and Assumption AgreementCertificates.
(b) The representations and warranties of As to each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made Funded Contract (except as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are noted below as being applicable only to facts, conditions either Precomputed Contracts or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:Simple Interest Contracts):
(i) The information pertaining to such Contract set forth with respect to in the Transferred Mortgage Loans on the Mortgage Loan related Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is Contracts was true and correct in all material respects at the date or dates respecting which such information is given;Closing Date.
(ii) There are no defaults As of the Closing Date, such Contract was secured by a valid and enforceable first priority security interest in favor of Onyx or a subsidiary of Onyx in the related Financed Vehicle, and such security interest has been duly perfected and is prior to all other liens upon and security interests in such Financed Vehicle which now exist or may hereafter arise or be created (other than delinquency except, as to priority, for any lien for unpaid taxes or unpaid storage or repair charges which may arise after the Closing Date in payment) in complying accordance with the terms of any MortgageUCC); such security interest is assignable, and had been assigned by Onyx to the Seller pursuant to the Purchase Agreement, and, as of the Closing Date, has no notice as been assigned by the Seller to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;the Issuer pursuant to Section 2.01(a) hereof.
(iiiA) Except If the related Contract was originated in a state in which notation of a security interest on the Title Document (or in the electronic title records, in the case of Cooperative Loansthe State of California) is required or permitted to perfect the security interest in the related Financed Vehicle, the Title Document or the electronic title records for such Financed Vehicle shows, or, if anya new or replacement Title Document is being applied for with respect to such Financed Vehicle, each Mortgage requires all buildings the Title Document will be received within 180 days of the Closing Date and will show, Onyx or other improvements on a subsidiary of Onyx named as the original secured party under the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards Contract as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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 a first priority security interest in such insurance at such Mortgagor’s cost and expenseFinanced Vehicle, and (B) if the related Contract was originated in a state in which the filing of a financing statement under the UCC is required to seek reimbursement therefor perfect a security interest in motor vehicles, such filings or recordings have been duly made and show Onyx or a subsidiary of Onyx named as the original secured party under the related Contract, and in either case, the Indenture Trustee on behalf of the Securityholders and the Insurer has the same rights as such secured party has or would have (if such secured party were still the owner of such Contract) against all parties claiming an interest in such Financed Vehicle. With respect to each Contract for which the Title Document has not yet been returned from the Mortgagor. Where required by state law Registrar of Titles (or regulationevidenced in the electronic title records, each Mortgagor has been given an opportunity to choose in the carrier case of the required hazard insuranceState of California), provided the policy is not Onyx has written evidence that such Title Documents showing Onyx or a “master” or “blanket” hazard insurance policy covering the common facilities subsidiary 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 Depositor upon the consummation of the transactions contemplated by this Agreement;Onyx as first lienholder have been applied for.
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien As of the MortgageClosing Date, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, to and has full right was the sole owner of each such Contract to transfer and sell each Transferred Mortgage Loan be transferred to the Depositor Issuer pursuant to Section 2.01 free of liens, claims, encumbrances and clearrights of others and, except as described upon transfer of such Contract to the Issuer pursuant to Section 2.01, the Issuer will have good and marketable title to, will have a first priority perfected security interest in paragraph and will be the sole owner of such Contract free of liens, encumbrances and rights of others.
(v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder As of the related MortgageCut-Off Date, including the Sellermost recent scheduled payment due on each such Contract had been made or was not delinquent more than 30 days and, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To to the best of the Seller’s 's knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loanall payments on the Contract were made by the related Obligors.
(ixvi) There As of the Closing Date, there is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, lien against the related cooperative unitFinanced Vehicle for delinquent taxes.
(vii) and each such property As of the Closing Date, there is undamaged by wasteno right of rescission, fireoffset, earthquake defense or earth movement, windstorm, flood, tornado or other casualty, so as counterclaim to have a material adverse effect on the value obligation of the related Mortgaged Property as security for Obligor(s) to pay the related Transferred Mortgage Loan unpaid principal or interest due under such Contract; the operation of the terms of such Contract or the use for which exercise of any right thereunder will not render such Contract unenforceable in whole or in part or subject such Contract to any right of rescission, offset, defense or counterclaim, and the premises were intended;Seller has no knowledge that such right of rescission, offset, defense or counterclaim has been asserted or threatened.
(xviii) There As of the Closing Date, to the best of the Seller's knowledge, there are no mechanics’ or similar liens or claims which have been filed filed, including liens for work, labor labor, material, storage or material (and no rights are outstanding that under the law could give rise to such liens) unpaid taxes affecting the related Mortgaged Property Financed Vehicle which are or may be liens become a lien prior to, or equal or coordinate with, the lien security interest granted by such Contract.
(ix) Such Contract, and the sale of the related Mortgage;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan associationFinanced Vehicle sold thereunder, savings bankcomplied, commercial bank, credit union, 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;
(xii) Each Transferred Mortgage Loan at the time it was made complied made, in all material respects with all applicable localfederal, statestate and local laws (and regulations thereunder), including without limitation usury, equal credit opportunity, fair credit reporting, truth-in-lending or other similar laws, the Federal Trade Commission Act, the Fair Debt Collection Practices Act, the Fair Credit Billing Act, the Magn▇▇▇▇-▇▇▇▇ ▇▇▇ranty Act, the Federal Reserve Board's Regulations B and Z, the Soldiers' and Sailors' Civil Relief Act of 1940, state adoptions of the National Consumer Act and the Uniform Consumer Credit Code, and federal other applicable state laws regulating retail installment sales contracts and loans in general and motor vehicle retail installment contracts and loans in particular; and the consummation of the transactions herein contemplated, including, but without limitation, the transfer of ownership of such Contracts to the Issuer and the receipt of interest by the Securityholders, will not violate any applicable federal, state or local law.
(x) Such Contract is the legal, valid and binding obligation of the related Obligor(s) thereunder and is enforceable in accordance with its terms, except only as such enforcement may be limited toby bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally; each party to such Contract had full legal capacity to execute and deliver such Contract and all applicable predatory other documents related thereto and abusive lending laws;to grant the security interest purported to be granted thereby; the terms of such Contract have not been waived, amended or modified in any respect, except by instruments that are part of the related Contract Documents, and no such waiver, amendment or modification has caused such Contract to fail to meet all of the representations, warranties and conditions, set forth herein with respect thereto.
(xi) Such Contract contains customary and enforceable provisions such as to render the rights and remedies of the holder or assignee thereof adequate for the practical realization against the collateral of the benefits of the security, subject, as to enforceability, to bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors' rights generally.
(xii) As of the Closing Date, (a) there was no default, breach, violation or event permitting acceleration existing under such Contract (except payment delinquencies permitted by subparagraph (v) above), (b) there does not exist any continuing condition that with notice or lapse of time would constitute a default, breach, violation or event permitting acceleration existing under such Contract, and (c) the Seller has not waived any such default, breach, violation or event permitting acceleration except payment delinquencies permitted by subparagraph (v) above.
(xiii) As of the Closing Date, Date each Transferred Mortgage Loan is a “qualified mortgage” within related Financed Vehicle will be covered by the meaning Blanket Insurance Policy; each of Section 860G Onyx and the Seller shall at all times comply with all of the Code and Treas. Reg. §1.860G-2 (determined without regard provisions of such insurance policy applicable to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation it so long as such insurance policy is a qualified mortgage for a temporary period);in effect.
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides (a) such Contract will require that the related Obligor(s) obtain and maintain in effect for interest other than at either the related Financed Vehicle a comprehensive and collision insurance policy (i) a single fixed rate in effect throughout an amount at least equal to the term lesser of (x) its maximum insurable value or (y) the Transferred Mortgage Loan or principal amount due from the related Obligor(s) under such Contract, (ii) naming Onyx or a subsidiary of Onyx as a loss payee and (iii) insuring against loss and damage due to fire, theft, transportation, collision and other risks generally covered by comprehensive and collision coverage and (b) the Servicer shall have put in place a vendor's single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term interest insurance policy providing coverage upon repossession of the Transferred Mortgage Loan;related Financed Vehicle in an amount equal to the lesser of the actual cash value of such Financed Vehicle, the cost of repair or replacement for such Financed Vehicle and the unpaid balance of the related Contract. Each of Onyx and the Seller shall, and Onyx shall cause any subsidiary of Onyx which originated a Contract to, at all times comply with all of the provisions of such insurance policies applicable to it.
(xv) Such Contract was either originated by a subsidiary of Onyx, purchased by a subsidiary of Onyx, or acquired by Onyx from a Dealer with which it ordinarily does business, and no adverse selection procedures have been utilized in selecting such Contract from all other similar contracts purchased or originated by Onyx or any such subsidiary.
(xvi) Payments under such Contract have been applied in accordance with the Rule of 78's Method, the Actuarial Method or the Simple Interest Method, as provided in the applicable Contract, and are due monthly in substantially equal amounts through its Maturity Date sufficient to fully amortize the principal balance of such Contract by its Maturity Date.
(xvii) There is only one original of such Contract and such original, together with all other related Contract Documents, is being held by the Custodian.
(xviii) As of the Closing Date, no Transferred Mortgage Loan the Servicer has clearly marked its electronic records to indicate that such Contract is owned by the subject of pending or final foreclosure proceedings;Issuer.
(xvixix) At the date of origination of the Contract, the original principal balance of such Contract was not greater than the purchase price to the related Obligor(s) (including taxes, warranties, licenses and related charges) of the related Financed Vehicle.
(xx) As of the Closing related Cut-Off Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would has not initiate foreclosure proceedings received notice that any Obligor under such Contract has filed for bankruptcy.
(xxi) Such Contract had an original maturity of not more than 72 months and as of the related Cut-Off Date, such Contract has a remaining maturity of 72 months or less;
(xxii) The first payment under at least 80% of the Initial Contracts (by Outstanding Principal Balance) is due on or before October 31, 1999, and the first payment under at least 90% of the Subsequent Contracts (by Outstanding Principal Balance) is due on or before November 30, 1999.
(xxiii) As of the related Cut-Off Date, such Contract has a remaining principal balance of at least $500.
(xxiv) As of the related Cut-Off Date, such Contract is secured by a Financed Vehicle that has not been repossessed without reinstatement.
(xxv) The related Obligor(s) were located in Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, South Carolina, Tennessee, Texas, Utah, Virginia, Washington or Wisconsin on the date of origination of such Contract.
(xxvi) The Obligor on such Contract is either (a) a natural person residing in any state or (b) another entity, provided that a natural person is a joint and several Obligor with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;Contract.
(xviic) No Transferred Mortgage Loan is a “highAs to all of the Funded Contracts:
(i) The aggregate Outstanding Principal Balance payable by Obligors of the Funded Contracts as of the related Cut-cost,” “highOff Date plus the initial deposit into the Prefunding Account equals the Original Pool Balance.
(ii) As of the Subsequent Cut-cost home,” “covered,” “high-risk home” Off Date, the aggregate Outstanding Principal Balance of all Contracts originated in any single state, other than California, did not equal or “predatory” loan under any exceed 10%.
(d) As to each Prefunded Contract (except as noted below as being applicable federalonly to either Precomputed Contracts or Simple Interest Contracts), state or local predatory or abusive lending law as of the related Prefunding Transfer Date (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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.except as otherwis
Appears in 1 contract
Sources: Sale and Servicing Agreement (Onyx Acceptance Financial Corp)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv), (xvi) and 1.04(b)(xxand(xiii)) , shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv), (xvi) and 1.04(b)(xxand(xiii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the those representations and warranties made pursuant to Sections 1.04(b) 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv), (xvi) and 1.04(b)(xx(xiii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representation and warranties made by it pursuant to Sections 1.04(b) (xii), (xiii), (xiv), (xv), (xvi) and (xiii)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ Mae or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, with a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxii) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Each Transferred Mortgage Loan, at the time it was originated, complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable local, state and federal predatory and abusive lending laws;
(xvxiii) As of the Closing Date, no No Transferred Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Datethen current Standard & Poor’s LEVELS® Glossary which is now Version 5.6c Revised, based on delinquencies in payment on the Transferred Mortgage LoansAppendix E. In addition, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No no Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home,” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no ;
(xiv) No Transferred Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law;
(xv) No Transferred Mortgage Loan was originated (or modified) on or after November 27January 1, 2002 and before March 7, 2003 which is secured by a “High-Cost Home Loan” subject to mortgaged property located in Georgia;
(xvi) No Transferred Mortgage Loan that is secured by property located in Illinois is in violation of the New Jersey Home Ownership Security provisions of the Illinois Interest Act of 2003 (N.J.S.A. 46:10B-22 et 815 Ill. Comp. Stat. 205/1 et. seq.); no Transferred and
(xvii) The information set forth in the Prepayment Charge Schedules included as part of the Mortgage Loan Schedules at Schedules A and B (including the Prepayment Charge Summary attached thereto) is a “High-Cost Home Loan” subject complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the New Mexico Home Loan Protection Act extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure); and
(N.M.xviii) In addition to the foregoing representations and warranties made in subparagraphs (i) through (xvii) of this Section 1.04(b), the Seller
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp. 2005-16)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of transfer of the related Mortgage Loans to the Bank pursuant to such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and or warranty (other than except in the case of a breach by the Seller of the these representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi) and 1.04(b)(xx)(xvii) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi) and 1.04(b)(xx(xvii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi) and 1.04(b)(xx(xvii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of these representations and warranties made pursuant to Sections 1.04(b)(xiii), (xiv) and (xv)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement[Reserved];
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first junior lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) senior liens of such Mortgage, (2) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (23) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (34) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first second lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy[Reserved];
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xi) Each Transferred Mortgage Loan will have a CLTV of 100% or less as of the Closing Date;
(xii) Each Transferred Mortgage Loan at the time it was made complied in all material respects with applicable local, state, and federal laws including, but not limited that is secured by residential real property (or a leasehold interest therein) has a loan-to, all applicable predatory and abusive lending laws;
-value ratio of 100% or less (xiii) As by Scheduled Principal Balance as of the Closing Cut-off Date, each Transferred ). Each Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 1.860G-2;
(determined without regard to Treas. Reg. §1.860G-2(fxiii) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)Each Transferred Mortgage Loan at the time it was originated, complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable local, state and federal predatory and abusive lending laws;
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no No Transferred Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing DateStandard & Poor’s LEVELS Glossary, based on delinquencies Version 5.6 Revised, Appendix E, in payment effect on the Transferred Mortgage Loansdate hereof. In addition, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No no Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home,” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no ;
(xv) No Transferred Mortgage Loan was originated (or modified) on or after November 27October 1, 2002 through March 6, 2003 which is secured by a “High-Cost Home Loan” mortgaged property located in Georgia;
(xvi) No Transferred Mortgage Loan was at the time of origination subject to the New Jersey Home Ownership Security and Equity Protection Act of 2003 1994 (N.J.S.A. 46:10B-22 et seq15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law; and
(xvii) The information set forth in the Prepayment Charge Schedules, included as part of the Mortgage Loan Schedules at Schedules A-1 and A-2 hereto (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure). It is understood and agreed that the representations and warranties set forth in Section 1.04(b) and 1.04(c) herein shall survive the Closing Date. Upon discovery by either the Seller or the Depositor of a breach of any of the foregoing representations and warranties (excluding a breach of subparagraph (xvii) under Section 1.04(b)) that adversely and materially affects the value of the related Mortgage Loan and that does not also constitute a breach of a representation or warranty of a Transferor in the related Transfer Agreement, the party discovering such breach shall give prompt written notice to the other party; provided, however, that notwithstanding anything to the contrary herein, this paragraph shall be specifically applicable to a breach by the Seller of the representations made pursuant to subparagraphs (xiii), (xiv) and (xv) of Section 1.04(b) irrespective of a Transferor’s breach of a comparable representation or warranty made in the related Transfer Agreement. Within 60 days of the discovery of any such breach, the Seller shall either (a) cure such breach in all material respects, (b) repurchase such Mortgage Loan or any property acquired in respect thereof from the Depositor at the applicable Purchase Price or (c) within the two-year period following the Closing Date, substitute a Qualifying Substitute Mortgage Loan for the affected Mortgage Loan.
(c) In addition to the representations and warranties set forth in Section 1.04(b); , all of which are also made by the Seller with respect to the Bank Originated Mortgage Loans as of the Cut-off Date, the Seller hereby further represents and warrants to the Depositor upon the delivery to the Depositor on the Closing Date of any Bank Originated Mortgage Loans, but solely as to each Bank Originated Mortgage Loan, that, as of the Cut-off Date:
(i) With respect to any hazard insurance policy covering a Bank Originated Mortgage Loan and the related Mortgaged Property, the Seller has not engaged in, and has no Transferred knowledge of the Bank’s or the borrower’s having engaged in, any act or omission which would impair the coverage of any such policy, the benefits of the endorsement provided for therein, 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;
(ii) Neither the Seller nor the Bank has waived the performance by the borrower of any action, if the Mortgagor’s failure to perform such action would cause a Bank Originated Mortgage Loan to be in default, nor has the Seller or the Bank waived any default resulting from any action or inaction by the borrower;
(iii) 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, if necessary to protect the interests of the Depositor and which has been delivered to the related Custodian;
(iv) The Mortgaged Property relating to each Bank Originated Mortgage Loan is a “Highfee simple property located in the state identified in the Mortgage Loan Schedule and consists of a parcel of real property with a detached single family residence erected thereon, or a two- to four-Cost Home Loan” subject to family dwelling, or an individual condominium unit in a low-rise condominium project, or an individual unit in a planned unit development; provided, however, that any condominium project or planned unit development shall conform with the New Mexico Home Loan Protection Act (N.M.applicable ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac requirements regarding such dwellings. No portio
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp 2005-S1)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement;
(ii) The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have has been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of each the Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a the Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Greenpoint Mortgage Funding Trust 2007-Ar2)
Representations and Warranties of the Seller. (a) The Seller hereby represents makes the following representations and warrants warranties on which (i) the Issuer is deemed to have relied in acquiring the Depositor that Contracts and (ii) the Insurer is deemed to have relied in issuing the Policy; provided such representations and warranties speak as of the execution and delivery of this Agreement and as of the Closing DateDate with respect to Sections 2.02(a), (b) and (c), and as of each Prefunding Transfer Date (with respect to the Prefunded Contracts conveyed to the Trust on such date) with respect to Sections 2.02(a) and (d), but shall survive the sale, transfer and assignment of the Contracts to the Issuer and the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) As to the Seller:
(i) The Seller is duly organized and validly existing as a corporation duly organized, validly organized and existing and in good standing under the laws governing its creation and existence and has full corporate of the State of Delaware, with power and authority to own its property, properties and to carry on conduct its business as presently conductedand had at all relevant times, and has, power, authority, and legal right to enter into originate or acquire and perform its obligations under this Agreement and own the Assignment and Assumption Agreement;Contracts.
(ii) The execution Seller is duly qualified to do business as a foreign corporation in good standing, and delivery shall have obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications.
(iii) The Seller has the power and authority to execute and deliver this Agreement and to carry out its terms; the Seller has full power and authority to sell and assign the property to be sold and assigned to and deposited with the Issuer and has duly authorized such sale and assignment to the Issuer by all necessary corporate action; and the execution, delivery, and performance of this Agreement has been duly authorized by the Seller by all necessary corporate action.
(iv) This Agreement constitutes (A) a valid sale, transfer, and assignment of the Contracts, enforceable against creditors of and purchasers from the Seller and (B) a legal, valid, and binding obligation of the Seller enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or at law.
(v) The consummation of the transactions contemplated by this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part fulfillment of the Seller; neither terms hereof shall not conflict with, result in any breach of any of the execution terms and delivery of this Agreement or the Assignment and Assumption Agreementprovisions of, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict constitute (with or result in a breach of, without notice or constitute lapse of time) a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
, or any indenture, agreement, or other instrument to which the Seller is a party or by which it shall be bound; nor result in the creation or imposition of any Lien upon any of the properties of the Seller pursuant to the terms of any such indenture, agreement, or other instrument (iii) The executionother than pursuant to the Basic Documents to which the Seller is a party); nor violate any law or any order, delivery and performance by rule, or regulation applicable to the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent any court or approval of, the giving of notice to, the registration with, or the taking of any other action in respect offederal or state regulatory body, any stateadministrative agency, federal or other governmental authority instrumentality having jurisdiction over the Seller or its properties.
(vi) To the Seller's best knowledge after due inquiry, there are no proceedings or investigations pending, or threatened, before any court, regulatory body, administrative agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by other governmental instrumentality having jurisdiction over the Seller and, assuming due authorization, execution and delivery by or its properties: (A) asserting the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case invalidity of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective termsNotes, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, seeking to prevent the knowledge issuance of the Seller, threatened Notes or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to consummation of any of the transactions contemplated by this Agreement Agreement, (C) seeking any determination or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller ruling that might materially and adversely affect it or the performance by the Seller of its business, assets, operations or condition, financial or otherwiseobligations under, or the validity or enforceability of, this Agreement, the Notes, or (D) naming the Seller which might adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreementfederal income tax attributes of the Notes.
(b) The representations and warranties of As to each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made Funded Contract (except as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are noted below as being applicable only to facts, conditions either Precomputed Contracts or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:Simple Interest Contracts):
(i) The information pertaining to such Contract set forth with respect to in the Transferred Mortgage Loans on the Mortgage Loan related Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is Contracts was true and correct in all material respects at the date or dates respecting which such information is given;Closing Date.
(ii) There are no defaults As of the Closing Date, such Contract was secured by a valid and enforceable first priority security interest in favor of Onyx in the related Financed Vehicle, and such security interest has been duly perfected and is prior to all other liens upon and security interests in such Financed Vehicle which now exist or may hereafter arise or be created (other than delinquency except, as to priority, for any lien for unpaid taxes or unpaid storage or repair charges which may arise after the Closing Date in payment) in complying accordance with the terms of any MortgageUCC); such security interest is assignable, and had been assigned by Onyx to the Seller pursuant to the Purchase Agreement, and, as of the Closing Date, has no notice as been assigned by the Seller to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;the Issuer pursuant to Section 2.01(a) hereof.
(iiiA) Except If the related Contract was originated in a state in which notation of a security interest on the Title Document (or in the case of Cooperative Loanselectronic title records) is required or permitted to perfect the security interest in the related Financed Vehicle, the Title Document or the electronic title records for such Financed Vehicle shows, or, if anya new or replacement Title Document is being applied for with respect to such Financed Vehicle, each Mortgage requires all buildings or other improvements on the Title Document will be received within 180 days of the Closing Date and will show, Onyx named as the original secured party under the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards Contract as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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 a first priority security interest in such insurance at such Mortgagor’s cost and expenseFinanced Vehicle, and (B) if the related Contract was originated in a state in which the filing of a financing statement under the UCC is required to seek reimbursement therefor perfect a security interest in motor vehicles, such filings or recordings have been duly made and show Onyx named as the original secured party under the related Contract, and in either case, the Indenture Trustee on behalf of the Noteholders and the Insurer has the same rights as such secured party has or would have (if such secured party were still the owner of such Contract) against all parties claiming an interest in such Financed Vehicle. With respect to each Contract for which the Title Document has not yet been returned from the Mortgagor. Where required by state law Registrar of Titles (or regulationevidenced in the electronic title records), each Mortgagor Onyx has written evidence that such Title Documents showing Onyx as first lienholder have 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;applied for.
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien As of the MortgageClosing Date, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, to and has full right was the sole owner of each such Contract to transfer and sell each Transferred Mortgage Loan be transferred to the Depositor Issuer pursuant to Section 2.01 free of liens, claims, encumbrances and clearrights of others and, except as described upon transfer of such Contract to the Issuer pursuant to Section 2.01, the Issuer will have good and marketable title to, will have a first priority perfected security interest in paragraph and will be the sole owner of such Contract free of liens, encumbrances and rights of others.
(v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder As of the related MortgageCut-Off Date, including the Sellermost recent scheduled payment due on each such Contract had been made or was not delinquent more than 30 days and, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To to the best of the Seller’s 's knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loanall payments on the Contract were made by the related Obligors.
(ixvi) There As of the Closing Date, there is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, lien against the related cooperative unitFinanced Vehicle for delinquent taxes.
(vii) and each such property As of the Closing Date, there is undamaged by wasteno right of rescission, fireoffset, earthquake defense or earth movement, windstorm, flood, tornado or other casualty, so as counterclaim to have a material adverse effect on the value obligation of the related Mortgaged Property as security for Obligor(s) to pay the related Transferred Mortgage Loan unpaid principal or interest due under such Contract; the operation of the terms of such Contract or the use for which exercise of any right thereunder will not render such Contract unenforceable in whole or in part or subject such Contract to any right of rescission, offset, defense or counterclaim, and the premises were intended;Seller has no knowledge that such right of rescission, offset, defense or counterclaim has been asserted or threatened.
(xviii) There As of the Closing Date, to the best of the Seller's knowledge, there are no mechanics’ or similar liens or claims which have been filed filed, including liens for work, labor labor, material, storage or material (and no rights are outstanding that under the law could give rise to such liens) unpaid taxes affecting the related Mortgaged Property Financed Vehicle which are or may be liens become a lien prior to, or equal or coordinate with, the lien security interest granted by such Contract.
(ix) Such Contract, and the sale of the related Mortgage;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan associationFinanced Vehicle sold thereunder, savings bankcomplied, commercial bank, credit union, 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;
(xii) Each Transferred Mortgage Loan at the time it was made complied made, in all material respects with all applicable localfederal, statestate and local laws (and regulations thereunder), including without limitation usury, equal credit opportunity, fair credit reporting, truth-in-lending or other similar laws, the Federal Trade Commission Act, the Fair Debt Collection Practices Act, the Fair Credit Billing Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal Reserve Board's Regulations B and Z, the Soldiers' and Sailors' Civil Relief Act of 1940, state adoptions of the National Consumer Act and the Uniform Consumer Credit Code, and federal other applicable state laws regulating retail installment sales contracts and loans in general and motor vehicle retail installment contracts and loans in particular; and the consummation of the transactions herein contemplated, including, but without limitation, the transfer of ownership of such Contracts to the Issuer and the receipt of interest by the Noteholders, will not violate any applicable federal, state or local law.
(x) Such Contract is the legal, valid and binding obligation of the related Obligor(s) thereunder and is enforceable in accordance with its terms, except only as such enforcement may be limited toby bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally; each party to such Contract had full legal capacity to execute and deliver such Contract and all applicable predatory other documents related thereto and abusive lending laws;to grant the security interest purported to be granted thereby; the terms of such Contract have not been waived, amended or modified in any respect, except by instruments that are part of the related Contract Documents, and no such waiver, amendment or modification has caused such Contract to fail to meet all of the representations, warranties and conditions, set forth herein with respect thereto.
(xi) Such Contract contains customary and enforceable provisions such as to render the rights and remedies of the holder or assignee thereof adequate for the practical realization against the collateral of the benefits of the security, subject, as to enforceability, to bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors' rights generally.
(xii) As of the Closing Date, (a) there was no default, breach, violation or event permitting acceleration existing under such Contract (except payment delinquencies permitted by subparagraph (v) above), (b) there does not exist any continuing condition that with notice or lapse of time would constitute a default, breach, violation or event permitting acceleration existing under such Contract, and (c) the Seller has not waived any such default, breach, violation or event permitting acceleration except payment delinquencies permitted by subparagraph (v) above.
(xiii) As of the Closing Date, Date each Transferred Mortgage Loan is a “qualified mortgage” within related Financed Vehicle will be covered by the meaning Blanket Insurance Policy; each of Section 860G Onyx and the Seller shall at all times comply with all of the Code and Treas. Reg. §1.860G-2 (determined without regard provisions of such insurance policy applicable to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation it so long as such insurance policy is a qualified mortgage for a temporary period);in effect.
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides (a) such Contract will require that the related Obligor(s) obtain and maintain in effect for interest other than at either the related Financed Vehicle a comprehensive and collision insurance policy (i) a single fixed rate in effect throughout an amount at least equal to the term lesser of (x) its maximum insurable value or (y) the Transferred Mortgage Loan or principal amount due from the related Obligor(s) under such Contract, (ii) naming Onyx as a loss payee and (iii) insuring against loss and damage due to fire, theft, transportation, collision and other risks generally covered by comprehensive and collision coverage and (b) the Servicer shall have put in place a vendor's single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term interest insurance policy providing coverage upon repossession of the Transferred Mortgage Loan;related Financed Vehicle in an amount equal to the lesser of the actual cash value of such Financed Vehicle, the cost of repair or replacement for such Financed Vehicle and the unpaid balance of the related Contract. Each of Onyx and the Seller shall at all times comply with all of the provisions of such insurance policies applicable to it.
(xv) Such Contract was acquired by Onyx from a Dealer with which it ordinarily does business, and no adverse selection procedures have been utilized in selecting such Contract from all other similar contracts purchased or originated by Onyx or any subsidiary.
(xvi) Payments under such Contract have been applied in accordance with the Rule of 78's Method, the Actuarial Method or the Simple Interest Method, as provided in the applicable Contract, and are due monthly in substantially equal amounts through its Maturity Date sufficient to fully amortize the principal balance of such Contract by its Maturity Date.
(xvii) There is only one original of such Contract and such original, together with all other related Contract Documents, is being held by the Custodian.
(xviii) As of the Closing Date, no Transferred Mortgage Loan the Servicer has clearly marked its electronic records to indicate that such Contract is owned by the subject Issuer.
(xix) At the date of pending or final foreclosure origination of the Contract, the original principal balance of such Contract was not greater than the purchase price to the related Obligor(s) (including taxes, warranties, licenses and related charges) of the related Financed Vehicle.
(xx) The Seller has not received notice that any Obligor under such Contract was in bankruptcy proceedings, as of the related Cut-Off Date;
(xvixxi) Such Contract had an original maturity of not more than 72 months and as of the related Cut-Off Date, such Contract has a remaining maturity of 72 months or less;
(xxii) The first scheduled monthly payment for at least 80% of the Initial Contracts (by Outstanding Principal Balance) is due on or before October 31, 2003, and the first scheduled monthly payment for at least 80% of the Subsequent Contracts (by Outstanding Principal Balance) is due on or before November 30, 2003.
(xxiii) As of the Closing related Cut-Off Date, based on delinquencies such Contract has a remaining principal balance of at least $500.
(xxiv) As of the related Cut-Off Date, such Contract is secured by a Financed Vehicle that has not been repossessed without reinstatement.
(xxv) The related Obligor(s) were located in payment Alabama, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington or West Virginia on the Transferred Mortgage Loansdate of origination of such Contract.
(xxvi) The Obligor on such Contract is either (a) a natural person residing in any state or (b) another entity, the Seller would not initiate foreclosure proceedings provided that a natural person is a joint and several Obligor with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;Contract.
(xviic) No Transferred Mortgage Loan As to all of the Funded Contracts:
(i) The aggregate Outstanding Principal Balance payable by Obligors of the Funded Contracts as of the related Cut-Off Date plus the initial deposit into the Prefunding Account equals the Original Pool Balance.
(ii) As of the related Cut-Off Date, approximately 29.77% of the Outstanding Principal Balance of all Funded Contracts is a “highattributable to loans involving new Financed Vehicles, and approximately 70.23% of the Outstanding Principal Balance of all Funded Contracts is attributable to loans involving used Financed Vehicles.
(iii) As of the related Cut-cost,” “high-cost home,” “covered,” “high-risk home” Off Date, the aggregate Outstanding Principal Balance of all Funded Contracts originated in any single state, other than California, did not equal or “predatory” loan under any exceed 10%.
(d) As to each Prefunded Contract (except as noted below as being applicable federalonly to either Precomputed Contracts or Simple Interest Contracts), state or local predatory or abusive lending law as of the related Prefunding Transfer Date (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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject except as otherwise noted):
(i) The information pertaining to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.such Contract set
Appears in 1 contract
Sources: Sale and Servicing Agreement (Onyx Acceptance Financial Corp)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement and this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each the Transferor with respect to the Transferred Mortgage Loans in the applicable each Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a the Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xiii) through (xix)), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such the Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xiii) through (xix), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xiii) and 1.04(b)(xxthrough (xix)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii) through (xix)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such the applicable Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such the applicable Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ ▇▇▇ or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a Transferred the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each In the case of 95.97% and 4.03% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien or second lien, respectively, on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred such Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any In the case of 95.97% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(x) [Reserved];
(xi) Each Transferred Mortgage Loan was originated by will have a savings and loan association, savings bank, commercial bank, credit union, insurance company LTV of 100% 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 less as of the National Housing ActClosing Date;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxiii) As of the Closing Date, other than with respect to Retained Interest, no Transferred Each Mortgage Loan provides for interest other than at either 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, abusive and fair lending laws; and, specifically, (ia) a single fixed rate in effect throughout the term of the Transferred no Mortgage Loan or (ii) secured by a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) Mortgaged Property located in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan New Jersey is a “highHigh-cost,Cost Home Loan” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after as defined in the New Jersey Home Ownership Act effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.); (b) no Mortgage Loan secured by a Mortgaged Property located in New Mexico is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Sasco 2006-Opt1)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement and this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each the Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such the Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a the Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xiii) through (xix)), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such the Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xiii) and 1.04(b)(xxthrough (xix) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xiii) and 1.04(b)(xxthrough (xix)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii) through (xix)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such the Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such the Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ ▇▇▇ or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a Transferred the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each In the case of all of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred such Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any In the case of all of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(x) [Reserved];
(xi) Each Transferred Mortgage Loan was originated by will have a savings and loan association, savings bank, commercial bank, credit union, insurance company LTV of 100% 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 less as of the National Housing ActClosing Date;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxiii) As of the Closing Date, other than with respect to Retained Interest, no Transferred Each Mortgage Loan provides for interest other than at either the time it was originated complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable local, state and federal predatory, abusive and fair lending laws; and, specifically, (ia) a single fixed rate in effect throughout the term of the Transferred no Mortgage Loan or (ii) secured by a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) Mortgaged Property located in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 New Jersey is a “High-Cost Home Loan” subject to as defined in the New Jersey Home Ownership Security Act of effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.); (b) no Transferred Mortgage Loan secured by a Mortgaged Property located in New Mexico is a “High-Cost Home Loan” subject to as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (First Franklin Mortgage Loan Trust 2006-Ff15)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing DateDate that:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, terms except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each the Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a the Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix4.01(b)(xi) and 1.04(b)(xx)4.01(b)(xiii) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix4.01(b)(xi) and 1.04(b)(xx4.01(b)(xiii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix4.01(b)(xi) and 1.04(b)(xx)4.01(b)(xiii) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans on the Closing Date to the Depositor hereunder on the Closing Datehereunder, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, Loans and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;.
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred such Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred Mortgage Loan Loan, at the time it was made originated, complied in all material respects with applicable local, state, state and federal laws laws, including, but not limited to, all applicable predatory and abusive lending laws;
(xiiixii) As of the Closing Date, each Transferred Each Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 1.860G-2;
(determined without regard to Treas. Reg. §1.860G-2(fxiii) No Mortgage Loans are “high-cost loans” as defined by the Georgia Fair Lending Act of 2002 or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)other applicable predatory and abusive lending legislation;
(xiv) As With respect to Pool 1 Mortgage Loans:
(a) No Mortgage Loan was originated in the State of Georgia;
(b) The applicable Servicer for each Pool 1 Mortgage Loan will accurately and fully report its borrower credit files to all three credit repositories in a timely manner;
(c) No Pool 1 Mortgage Loan imposes a Prepayment Charge for a term in excess of three years;
(d) The Seller has no reason to believe that any borrower will default under a Pool 1 Mortgage Loan, or that foreclosure proceedings will be commenced with respect to any such Mortgage Loan, within the six months immediately following the Closing Date, other than ;
(e) The outstanding Scheduled Principal Balance of each such Pool 1 Mortgage Loan does not exceed the maximum original loan amount limitations set forth in the ▇▇▇▇▇▇▇ Mac Seller/Servicer Guide with respect to Retained Interestone-to-four family residential mortgage loans, no Transferred whether first lien or subordinate lien mortgage loans, as applicable; and
(f) No Pool 1 Mortgage Loan provides for interest other than was at either the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (i15 USC § 1602(c)), Regulation Z (12 CFR 226.32) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loanany comparable state law;
(xv) As of the Closing Date, no Transferred With respect to Pool 2 Mortgage Loans:
(a) No Pool 2 Mortgage Loan is was at the time of origination subject to the Home Ownership and Equity Protection Act of pending 1994 (15 USC § 1602(c)), Regulation Z (12 CFR 220.32) or final foreclosure proceedingsany comparable state law;
(b) No proceeds from any Pool 2 Mortgage Loan were used to finance single-premium insurance policies; and
(c) No Pool 2 Mortgage Loan imposes a Prepayment Charge for a term in excess of five years;
(xvi) As The information set forth in the Prepayment Charge Schedule included as part of the Closing DateMortgage Loan Schedules at Schedule (including the Prepayment Charge Summary attached thereto) is complete, based on delinquencies true and correct in payment all material respects on the Transferred Mortgage Loansdate or dates on which such information is furnished and each Prepayment Charge is permissible and enforceable in accordance with its terms (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the Seller would not initiate foreclosure proceedings collectibility thereof may be limited due to acceleration in connection with foreclosure) under applicable state law.
(c) With respect to any Transferred Mortgage Loan prior of the foregoing representations and warranties made in subparagraph (xiv) of Section 1.04(b) that is made to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan best of the Seller’s knowledge or belief, if it is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federaldiscovered by the Seller, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.Trustee or
Appears in 1 contract
Representations and Warranties of the Seller. (a) The Seller hereby represents makes the following representations and warrants warranties on which (i) the Issuer is deemed to have relied in acquiring the Depositor that Contracts and (ii) the Insurer is deemed to have relied in issuing the Policy; provided such representations and warranties speak as of the execution and delivery of this Agreement and as of the Closing DateDate with respect to Sections 2.02(a), (b) and (c), and as of each Prefunding Transfer Date (with respect to the Prefunded Contracts conveyed to the Trust on such date) with respect to Sections 2.02(a) and (d), but shall survive the sale, transfer and assignment of the Contracts to the Issuer and the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) As to the Seller:
(i) The Seller is duly organized and validly existing as a corporation duly organized, validly organized and existing and in good standing under the laws governing its creation and existence and has full corporate of the State of Delaware, with power and authority to own its property, properties and to carry on conduct its business as presently conductedand had at all relevant times, and has, power, authority, and legal right to enter into originate or acquire and perform its obligations under this Agreement and own the Assignment and Assumption Agreement;Contracts.
(ii) The execution Seller is duly qualified to do business as a foreign corporation in good standing, and delivery shall have obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications.
(iii) The Seller has the power and authority to execute and deliver this Agreement and to carry out its terms; the Seller has full power and authority to sell and assign the property to be sold and assigned to and deposited with the Issuer and has duly authorized such sale and assignment to the Issuer by all necessary corporate action; and the execution, delivery, and performance of this Agreement has been duly authorized by the Seller by all necessary corporate action.
(iv) This Agreement constitutes (A) a valid sale, transfer, and assignment of the Contracts, enforceable against creditors of and purchasers from the Seller and (B) a legal, valid, and binding obligation of the Seller enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or at law.
(v) The consummation of the transactions contemplated by this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part fulfillment of the Seller; neither terms hereof shall not conflict with, result in any breach of any of the execution terms and delivery of this Agreement or the Assignment and Assumption Agreementprovisions of, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict constitute (with or result in a breach of, without notice or constitute lapse of time) a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
, or any indenture, agreement, or other instrument to which the Seller is a party or by which it shall be bound; nor result in the creation or imposition of any Lien upon any of the properties of the Seller pursuant to the terms of any such indenture, agreement, or other instrument (iii) The executionother than pursuant to the Basic Documents to which the Seller is a party); nor violate any law or any order, delivery and performance by rule, or regulation applicable to the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent any court or approval of, the giving of notice to, the registration with, or the taking of any other action in respect offederal or state regulatory body, any stateadministrative agency, federal or other governmental authority instrumentality having jurisdiction over the Seller or its properties.
(vi) To the Seller's best knowledge after due inquiry, there are no proceedings or investigations pending, or threatened, before any court, regulatory body, administrative agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by other governmental instrumentality having jurisdiction over the Seller and, assuming due authorization, execution and delivery by or its properties: (A) asserting the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case invalidity of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective termsNotes, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, seeking to prevent the knowledge issuance of the Seller, threatened Notes or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to consummation of any of the transactions contemplated by this Agreement Agreement, (C) seeking any determination or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller ruling that might materially and adversely affect it or the performance by the Seller of its business, assets, operations or condition, financial or otherwiseobligations under, or the validity or enforceability of, this Agreement, the Notes, or (D) naming the Seller which might adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreementfederal income tax attributes of the Notes.
(b) The representations and warranties of As to each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made Funded Contract (except as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are noted below as being applicable only to facts, conditions either Precomputed Contracts or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:Simple Interest Contracts):
(i) The information pertaining to such Contract set forth with respect to in the Transferred Mortgage Loans on the Mortgage Loan related Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is Contracts was true and correct in all material respects at the date or dates respecting which such information is given;Closing Date.
(ii) There are no defaults As of the Closing Date, such Contract was secured by a valid and enforceable first priority security interest in favor of Onyx in the related Financed Vehicle, and such security interest has been duly perfected and is prior to all other liens upon and security interests in such Financed Vehicle which now exist or may hereafter arise or be created (other than delinquency except, as to priority, for any lien for unpaid taxes or unpaid storage or repair charges which may arise after the Closing Date in payment) in complying accordance with the terms of any MortgageUCC); such security interest is assignable, and had been assigned by Onyx to the Seller pursuant to the Purchase Agreement, and, as of the Closing Date, has no notice as been assigned by the Seller to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;the Issuer pursuant to Section 2.01(a) hereof.
(iiiA) Except If the related Contract was originated in a state in which notation of a security interest on the Title Document (or in the electronic title records, in the case of Cooperative Loansthe State of California) is required or permitted to perfect the security interest in the related Financed Vehicle, the Title Document or the electronic title records for such Financed Vehicle shows, or, if anya new or replacement Title Document is being applied for with respect to such Financed Vehicle, each Mortgage requires all buildings or other improvements on the Title Document will be received within 180 days of the Closing Date and will show, Onyx named as the original secured party under the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards Contract as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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 a first priority security interest in such insurance at such Mortgagor’s cost and expenseFinanced Vehicle, and (B) if the related Contract was originated in a state in which the filing of a financing statement under the UCC is required to seek reimbursement therefor perfect a security interest in motor vehicles, such filings or recordings have been duly made and show Onyx named as the original secured party under the related Contract, and in either case, the Indenture Trustee on behalf of the Noteholders and the Insurer has the same rights as such secured party has or would have (if such secured party were still the owner of such Contract) against all parties claiming an interest in such Financed Vehicle. With respect to each Contract for which the Title Document has not yet been returned from the Mortgagor. Where required by state law Registrar of Titles (or regulationevidenced in the electronic title records, each Mortgagor has been given an opportunity to choose in the carrier case of the required hazard insuranceState of California), provided the policy is not a “master” or “blanket” hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and 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 Depositor upon the consummation of the transactions contemplated by this Agreement;Onyx has written evidence that such Title Documents showing Onyx as first lienholder have been applied for.
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien As of the MortgageClosing Date, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, to and has full right was the sole owner of each such Contract to transfer and sell each Transferred Mortgage Loan be transferred to the Depositor Issuer pursuant to Section 2.01 free of liens, claims, encumbrances and clearrights of others and, except as described upon transfer of such Contract to the Issuer pursuant to Section 2.01, the Issuer will have good and marketable title to, will have a first priority perfected security interest in paragraph and will be the sole owner of such Contract free of liens, encumbrances and rights of others.
(v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder As of the related MortgageCut-Off Date, including the Sellermost recent scheduled payment due on each such Contract had been made or was not delinquent more than 30 days and, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To to the best of the Seller’s 's knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loanall payments on the Contract were made by the related Obligors.
(ixvi) There As of the Closing Date, there is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, lien against the related cooperative unitFinanced Vehicle for delinquent taxes.
(vii) and each such property As of the Closing Date, there is undamaged by wasteno right of rescission, fireoffset, earthquake defense or earth movement, windstorm, flood, tornado or other casualty, so as counterclaim to have a material adverse effect on the value obligation of the related Mortgaged Property as security for Obligor(s) to pay the related Transferred Mortgage Loan unpaid principal or interest due under such Contract; the operation of the terms of such Contract or the use for which exercise of any right thereunder will not render such Contract unenforceable in whole or in part or subject such Contract to any right of rescission, offset, defense or counterclaim, and the premises were intended;Seller has no knowledge that such right of rescission, offset, defense or counterclaim has been asserted or threatened.
(xviii) There As of the Closing Date, to the best of the Seller's knowledge, there are no mechanics’ or similar liens or claims which have been filed filed, including liens for work, labor labor, material, storage or material (and no rights are outstanding that under the law could give rise to such liens) unpaid taxes affecting the related Mortgaged Property Financed Vehicle which are or may be liens become a lien prior to, or equal or coordinate with, the lien security interest granted by such Contract.
(ix) Such Contract, and the sale of the related Mortgage;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan associationFinanced Vehicle sold thereunder, savings bankcomplied, commercial bank, credit union, 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;
(xii) Each Transferred Mortgage Loan at the time it was made complied made, in all material respects with all applicable localfederal, statestate and local laws (and regulations thereunder), including without limitation usury, equal credit opportunity, fair credit reporting, truth-in-lending or other similar laws, the Federal Trade Commission Act, the Fair Debt Collection Practices Act, the Fair Credit Billing Act, the Magn▇▇▇▇-▇▇▇▇ ▇▇▇ranty Act, the Federal Reserve Board's Regulations B and Z, the Soldiers' and Sailors' Civil Relief Act of 1940, state adoptions of the National Consumer Act and the Uniform Consumer Credit Code, and federal other applicable state laws regulating retail installment sales contracts and loans in general and motor vehicle retail installment contracts and loans in particular; and the consummation of the transactions herein contemplated, including, but without limitation, the transfer of ownership of such Contracts to the Issuer and the receipt of interest by the Noteholders, will not violate any applicable federal, state or local law.
(x) Such Contract is the legal, valid and binding obligation of the related Obligor(s) thereunder and is enforceable in accordance with its terms, except only as such enforcement may be limited toby bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally; each party to such Contract had full legal capacity to execute and deliver such Contract and all applicable predatory other documents related thereto and abusive lending laws;to grant the security interest purported to be granted thereby; the terms of such Contract have not been waived, amended or modified in any respect, except by instruments that are part of the related Contract Documents, and no such waiver, amendment or modification has caused such Contract to fail to meet all of the representations, warranties and conditions, set forth herein with respect thereto.
(xi) Such Contract contains customary and enforceable provisions such as to render the rights and remedies of the holder or assignee thereof adequate for the practical realization against the collateral of the benefits of the security, subject, as to enforceability, to bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors' rights generally.
(xii) As of the Closing Date, (a) there was no default, breach, violation or event permitting acceleration existing under such Contract (except payment delinquencies permitted by subparagraph (v) above), (b) there does not exist any continuing condition that with notice or lapse of time would constitute a default, breach, violation or event permitting acceleration existing under such Contract, and (c) the Seller has not waived any such default, breach, violation or event permitting acceleration except payment delinquencies permitted by subparagraph (v) above.
(xiii) As of the Closing Date, Date each Transferred Mortgage Loan is a “qualified mortgage” within related Financed Vehicle will be covered by the meaning Blanket Insurance Policy; each of Section 860G Onyx and the Seller shall at all times comply with all of the Code and Treas. Reg. §1.860G-2 (determined without regard provisions of such insurance policy applicable to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation it so long as such insurance policy is a qualified mortgage for a temporary period);in effect.
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides (a) such Contract will require that the related Obligor(s) obtain and maintain in effect for interest other than at either the related Financed Vehicle a comprehensive and collision insurance policy (i) a single fixed rate in effect throughout an amount at least equal to the term lesser of (x) its maximum insurable value or (y) the Transferred Mortgage Loan or principal amount due from the related Obligor(s) under such Contract, (ii) naming Onyx as a loss payee and (iii) insuring against loss and damage due to fire, theft, transportation, collision and other risks generally covered by comprehensive and collision coverage and (b) the Servicer shall have put in place a vendor's single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term interest insurance policy providing coverage upon repossession of the Transferred Mortgage Loan;related Financed Vehicle in an amount equal to the lesser of the actual cash value of such Financed Vehicle, the cost of repair or replacement for such Financed Vehicle and the unpaid balance of the related Contract. Each of Onyx and the Seller shall at all times comply with all of the provisions of such insurance policies applicable to it.
(xv) Such Contract was acquired by Onyx from a Dealer with which it ordinarily does business, and no adverse selection procedures have been utilized in selecting such Contract from all other similar contracts purchased or originated by Onyx or any subsidiary.
(xvi) Payments under such Contract have been applied in accordance with the Rule of 78's Method, the Actuarial Method or the Simple Interest Method, as provided in the applicable Contract, and are due monthly in substantially equal amounts through its Maturity Date sufficient to fully amortize the principal balance of such Contract by its Maturity Date.
(xvii) There is only one original of such Contract and such original, together with all other related Contract Documents, is being held by the Custodian.
(xviii) As of the Closing Date, no Transferred Mortgage Loan the Servicer has clearly marked its electronic records to indicate that such Contract is owned by the subject of pending or final foreclosure proceedings;Issuer.
(xvixix) At the date of origination of the Contract, the original principal balance of such Contract was not greater than the purchase price to the related Obligor(s) (including taxes, warranties, licenses and related charges) of the related Financed Vehicle.
(xx) As of the Closing related Cut-Off Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would has not initiate foreclosure proceedings received notice that any Obligor under such Contract has filed for bankruptcy.
(xxi) Such Contract had an original maturity of not more than 72 months and as of the related Cut-Off Date, such Contract has a remaining maturity of 72 months or less;
(xxii) The first scheduled monthly payment for at least 80% of the Initial Contracts (by Outstanding Principal Balance) is due on or before July 31, 2000, and the first scheduled monthly payment for at least 90% of the Subsequent Contracts (by Outstanding Principal Balance) is due on or before August 31, 2000.
(xxiii) As of the related Cut-Off Date, such Contract has a remaining principal balance of at least $500.
(xxiv) As of the related Cut-Off Date, such Contract is secured by a Financed Vehicle that has not been repossessed without reinstatement.
(xxv) The related Obligor(s) were located in Alabama, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, Washington or West Virginia on the date of origination of such Contract.
(xxvi) The Obligor on such Contract is either (a) a natural person residing in any state or (b) another entity, provided that a natural person is a joint and several Obligor with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;Contract.
(xviic) No Transferred Mortgage Loan As to all of the Funded Contracts:
(i) The aggregate Outstanding Principal Balance payable by Obligors of the Funded Contracts as of the related Cut-Off Date plus the initial deposit into the Prefunding Account equals the Original Pool Balance.
(ii) As of the related Cut-Off Date, approximately 15.53% of the Outstanding Principal Balance of all Funded Contracts is a “highattributable to loans involving new Financed Vehicles, and approximately 84.47% of the Outstanding Principal Balance of all Funded Contracts is attributable to loans involving used Financed Vehicles.
(iii) As of the related Cut-cost,” “high-cost home,” “covered,” “high-risk home” Off Date, the aggregate Outstanding Principal Balance of all Funded Contracts originated in any single state, other than California, did not equal or “predatory” loan under any exceed 10%.
(d) As to each Prefunded Contract (except as noted below as being applicable federalonly to either Precomputed Contracts or Simple Interest Contracts), state or local predatory or abusive lending law as of the related Prefunding Transfer Date (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 feesexcept as otherwise noted):
(i); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 1 contract
Sources: Sale and Servicing Agreement (Onyx Acceptance Financial Corp)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each the Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement Agreements were made as of the date of such the applicable Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a the Transferor under the applicable such Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii), (xviii) and 1.04(b)(xx(xix)) , shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii), (xviii) and 1.04(b)(xx(xix) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii), (xviii) and 1.04(b)(xx(xix)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii), (xiv), (xv), (xvi), (xvii), (xviii) and (xix)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ ▇▇▇ or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a Transferred the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each In the case of all of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred such Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any In the case of all of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company or similar institution that is supervised and examined by a Federal federal or State state authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As will have a CLTV of 100% or less as of the Closing Date, each Transferred ;
(xii) Each Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 1.860G-2;
(determined without regard to Treas. Reg. §1.860G-2(fxiii) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)Each Mortgage Loan at the time it was originated complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable predatory and abusive lending laws;
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred No Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Datethen current Standard & Poor’s LEVELSâ Glossary, based on delinquencies in payment on the Transferred Mortgage Loanswhich is now Version 5.6b, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Appendix E. In addition, no Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home,” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred ;
(xv) No Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law;
(xvi) The information set forth in the Prepayment Charge Schedules, included as part of the Mortgage Loan Schedule at Schedule A hereto (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure);
(xvii) No Mortgage Loan was originated (or modified) on or after November 27October 1, 2002 through March 6, 2003 which is secured by a “High-Cost Home Loan” subject mortgaged property located in Georgia;
(xviii) Each Mortgage Loan was made or acquired by a Person organized or chartered under the laws of the State of Indiana, any other state, or the United States relating to banks, trust companies, savings associations, savings banks, credit unions, or industrial land and investment companies;
(xix) In addition to the New Jersey Home Ownership Security Act foregoing representations and warranties made in subparagraphs (i) through (xviii) of 2003 (N.J.S.A. 46:10B-22 et seq.this Section 1.04(b); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M., t
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp 2005-Wf4)
Representations and Warranties of the Seller. (a) The Seller hereby represents makes the following representations and warrants warranties on which (i) the Issuer is deemed to have relied in acquiring the Depositor that Contracts and (ii) the Insurer is deemed to have relied in issuing the Policy; provided such representations and warranties speak as of the execution and delivery of this Agreement and as of the Closing DateDate with respect to Sections 2.02(a), (b) and (c), and as of each Prefunding Transfer Date (with respect to the Prefunded Contracts conveyed to the Trust on such date) with respect to Sections 2.02(a) and (d), but shall survive the sale, transfer and assignment of the Contracts to the Issuer and the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) As to the Seller:
(i) The Seller is duly organized and validly existing as a corporation duly organized, validly organized and existing and in good standing under the laws governing its creation and existence and has full corporate of the State of Delaware, with power and authority to own its property, properties and to carry on conduct its business as presently conductedand had at all relevant times, and has, power, authority, and legal right to enter into originate or acquire and perform its obligations under this Agreement and own the Assignment and Assumption Agreement;Contracts.
(ii) The execution Seller is duly qualified to do business as a foreign corporation in good standing, and delivery shall have obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications.
(iii) The Seller has the power and authority to execute and deliver this Agreement and to carry out its terms; the Seller has full power and authority to sell and assign the property to be sold and assigned to and deposited with the Issuer and has duly authorized such sale and assignment to the Issuer by all necessary corporate action; and the execution, delivery, and performance of this Agreement has been duly authorized by the Seller by all necessary corporate action.
(iv) This Agreement constitutes (A) a valid sale, transfer, and assignment of the Contracts, enforceable against creditors of and purchasers from the Seller and (B) a legal, valid, and binding obligation of the Seller enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or at law.
(v) The consummation of the transactions contemplated by this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part fulfillment of the Seller; neither terms hereof shall not conflict with, result in any breach of any of the execution terms and delivery of this Agreement or the Assignment and Assumption Agreementprovisions of, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict constitute (with or result in a breach of, without notice or constitute lapse of time) a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
, or any indenture, agreement, or other instrument to which the Seller is a party or by which it shall be bound; nor result in the creation or imposition of any Lien upon any of the properties of the Seller pursuant to the terms of any such indenture, agreement, or other instrument (iii) The executionother than pursuant to the Basic Documents to which the Seller is a party); nor violate any law or any order, delivery and performance by rule, or regulation applicable to the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent any court or approval of, the giving of notice to, the registration with, or the taking of any other action in respect offederal or state regulatory body, any stateadministrative agency, federal or other governmental authority instrumentality having jurisdiction over the Seller or its properties.
(vi) To the Seller's best knowledge after due inquiry, there are no proceedings or investigations pending, or threatened, before any court, regulatory body, administrative agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by other governmental instrumentality having jurisdiction over the Seller and, assuming due authorization, execution and delivery by or its properties: (A) asserting the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case invalidity of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective termsNotes, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, seeking to prevent the knowledge issuance of the Seller, threatened Notes or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to consummation of any of the transactions contemplated by this Agreement Agreement, (C) seeking any determination or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller ruling that might materially and adversely affect it or the performance by the Seller of its business, assets, operations or condition, financial or otherwiseobligations under, or the validity or enforceability of, this Agreement, the Notes, or (D) naming the Seller which might adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreementfederal income tax attributes of the Notes.
(b) The representations and warranties of As to each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made Funded Contract (except as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are noted below as being applicable only to facts, conditions either Precomputed Contracts or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:Simple Interest Contracts):
(i) The information pertaining to such Contract set forth with respect to in the Transferred Mortgage Loans on the Mortgage Loan related Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is Contracts was true and correct in all material respects at the date or dates respecting which such information is given;Closing Date.
(ii) There are no defaults As of the Closing Date, such Contract was secured by a valid and enforceable first priority security interest in favor of Onyx in the related Financed Vehicle, and such security interest has been duly perfected and is prior to all other liens upon and security interests in such Financed Vehicle which now exist or may hereafter arise or be created (other than delinquency except, as to priority, for any lien for unpaid taxes or unpaid storage or repair charges which may arise after the Closing Date in payment) in complying accordance with the terms of any MortgageUCC); such security interest is assignable, and had been assigned by Onyx to the Seller pursuant to the Purchase Agreement, and, as of the Closing Date, has no notice as been assigned by the Seller to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;the Issuer pursuant to Section 2.01(a) hereof.
(iiiA) Except If the related Contract was originated in a state in which notation of a security interest on the Title Document (or in the case of Cooperative Loanselectronic title records) is required or permitted to perfect the security interest in the related Financed Vehicle, the Title Document or the electronic title records for such Financed Vehicle shows, or, if anya new or replacement Title Document is being applied for with respect to such Financed Vehicle, each Mortgage requires all buildings or other improvements on the Title Document will be received within 180 days of the Closing Date and will show, Onyx named as the original secured party under the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards Contract as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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 a first priority security interest in such insurance at such Mortgagor’s cost and expenseFinanced Vehicle, and (B) if the related Contract was originated in a state in which the filing of a financing statement under the UCC is required to seek reimbursement therefor perfect a security interest in motor vehicles, such filings or recordings have been duly made and show Onyx named as the original secured party under the related Contract, and in either case, the Indenture Trustee on behalf of the Noteholders and the Insurer has the same rights as such secured party has or would have (if such secured party were still the owner of such Contract) against all parties claiming an interest in such Financed Vehicle. With respect to each Contract for which the Title Document has not yet been returned from the Mortgagor. Where required by state law Registrar of Titles (or regulationevidenced in the electronic title records), each Mortgagor Onyx has written evidence that such Title Documents showing Onyx as first lienholder have 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;applied for.
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien As of the MortgageClosing Date, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, to and has full right was the sole owner of each such Contract to transfer and sell each Transferred Mortgage Loan be transferred to the Depositor Issuer pursuant to Section 2.01 free of liens, claims, encumbrances and clearrights of others and, except as described upon transfer of such Contract to the Issuer pursuant to Section 2.01, the Issuer will have good and marketable title to, will have a first priority perfected security interest in paragraph and will be the sole owner of such Contract free of liens, encumbrances and rights of others.
(v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder As of the related MortgageCut-Off Date, including the Sellermost recent scheduled payment due on each such Contract had been made or was not delinquent more than 30 days and, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To to the best of the Seller’s 's knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loanall payments on the Contract were made by the related Obligors.
(ixvi) There As of the Closing Date, there is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, lien against the related cooperative unitFinanced Vehicle for delinquent taxes.
(vii) and each such property As of the Closing Date, there is undamaged by wasteno right of rescission, fireoffset, earthquake defense or earth movement, windstorm, flood, tornado or other casualty, so as counterclaim to have a material adverse effect on the value obligation of the related Mortgaged Property as security for Obligor(s) to pay the related Transferred Mortgage Loan unpaid principal or interest due under such Contract; the operation of the terms of such Contract or the use for which exercise of any right thereunder will not render such Contract unenforceable in whole or in part or subject such Contract to any right of rescission, offset, defense or counterclaim, and the premises were intended;Seller has no knowledge that such right of rescission, offset, defense or counterclaim has been asserted or threatened.
(xviii) There As of the Closing Date, to the best of the Seller's knowledge, there are no mechanics’ or similar liens or claims which have been filed filed, including liens for work, labor labor, material, storage or material (and no rights are outstanding that under the law could give rise to such liens) unpaid taxes affecting the related Mortgaged Property Financed Vehicle which are or may be liens become a lien prior to, or equal or coordinate with, the lien security interest granted by such Contract.
(ix) Such Contract, and the sale of the related Mortgage;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan associationFinanced Vehicle sold thereunder, savings bankcomplied, commercial bank, credit union, 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;
(xii) Each Transferred Mortgage Loan at the time it was made complied made, in all material respects with all applicable localfederal, statestate and local laws (and regulations thereunder), including without limitation usury, equal credit opportunity, fair credit reporting, truth-in-lending or other similar laws, the Federal Trade Commission Act, the Fair Debt Collection Practices Act, the Fair Credit Billing Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal Reserve Board's Regulations B and Z, the Servicemembers Civil Relief Act, state adoptions of the National Consumer Act and the Uniform Consumer Credit Code, and federal other applicable state laws regulating retail installment sales contracts and loans in general and motor vehicle retail installment contracts and loans in particular; and the consummation of the transactions herein contemplated, including, but without limitation, the transfer of ownership of such Contracts to the Issuer and the receipt of interest by the Noteholders, will not violate any applicable federal, state or local law. Such Contract was acquired from a Dealer without any fraud or misrepresentation on the part of Seller or Onyx.
(x) Such Contract is the legal, valid and binding obligation of the related Obligor(s) thereunder and is enforceable in accordance with its terms, except only as such enforcement may be limited toby bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally; each party to such Contract had full legal capacity to execute and deliver such Contract and all applicable predatory other documents related thereto and abusive lending laws;to grant the security interest purported to be granted thereby; the terms of such Contract have not been waived, amended or modified in any respect, except by instruments that are part of the related Contract Documents, and no such waiver, amendment or modification has caused such Contract to fail to meet all of the representations, warranties and conditions, set forth herein with respect thereto. No Obligor on such Contract is a federal, state or local government entity.
(xi) Such Contract contains customary and enforceable provisions such as to render the rights and remedies of the holder or assignee thereof adequate for the practical realization against the collateral of the benefits of the security, subject, as to enforceability, to bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors' rights generally.
(xii) As of the Closing Date, (a) there was no default, breach, violation or event permitting acceleration existing under such Contract (except payment delinquencies permitted by subparagraph (v) above), (b) there does not exist any continuing condition that with notice or lapse of time would constitute a default, breach, violation or event permitting acceleration existing under such Contract, and (c) the Seller has not waived any such default, breach, violation or event permitting acceleration except payment delinquencies permitted by subparagraph (v) above.
(xiii) As of the Closing Date, Date each Transferred Mortgage Loan is a “qualified mortgage” within related Financed Vehicle will be covered by the meaning Blanket Insurance Policy; each of Section 860G Onyx and the Seller shall at all times comply with all of the Code and Treas. Reg. §1.860G-2 (determined without regard provisions of such insurance policy applicable to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation it so long as such insurance policy is a qualified mortgage for a temporary period);in effect.
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides (a) such Contract will require that the related Obligor(s) obtain and maintain in effect for interest other than at either the related Financed Vehicle a comprehensive and collision insurance policy (i) a single fixed rate in effect throughout an amount at least equal to the term lesser of (x) its maximum insurable value or (y) the Transferred Mortgage Loan or principal amount due from the related Obligor(s) under such Contract, (ii) naming Onyx as a loss payee and (iii) insuring against loss and damage due to fire, theft, transportation, collision and other risks generally covered by comprehensive and collision coverage and (b) the Servicer shall have put in place a vendor's single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term interest insurance policy providing coverage upon repossession of the Transferred Mortgage Loan;related Financed Vehicle in an amount equal to the lesser of the actual cash value of such Financed Vehicle, the cost of repair or replacement for such Financed Vehicle and the unpaid balance of the related Contract. Each of Onyx and the Seller shall at all times comply with all of the provisions of such insurance policies applicable to it.
(xv) Such Contract was acquired by Onyx from a Dealer with which it ordinarily does business, and no adverse selection procedures have been utilized in selecting such Contract from all other similar contracts purchased or originated by Onyx or any subsidiary.
(xvi) Payments under such Contract have been applied in accordance with the Rule of 78's Method, the Actuarial Method or the Simple Interest Method, as provided in the applicable Contract, and are due monthly in substantially equal amounts through its Maturity Date sufficient to fully amortize the principal balance of such Contract by its Maturity Date.
(xvii) There is only one original of such Contract and such original, together with all other related Contract Documents, is being held by the Custodian.
(xviii) As of the Closing Date, no Transferred Mortgage Loan the Servicer has clearly marked its electronic records to indicate that such Contract is owned by the subject Issuer.
(xix) At the date of pending or final foreclosure origination of the Contract, the original principal balance of such Contract was not greater than the purchase price to the related Obligor(s) (including taxes, warranties, licenses and related charges) of the related Financed Vehicle.
(xx) The Seller has not received notice that any Obligor under such Contract was in bankruptcy proceedings, as of the related Cut-Off Date;
(xvixxi) Such Contract had an original maturity of not more than 72 months and as of the related Cut-Off Date, such Contract has a remaining maturity of 72 months or less;
(xxii) The first scheduled monthly payment for at least 80% of the Initial Contracts (by Outstanding Principal Balance) is due on or before May 31, 2004, and the first scheduled monthly payment for at least 80% of the Subsequent Contracts (by Outstanding Principal Balance) is due on or before June 30, 2004.
(xxiii) As of the Closing related Cut-Off Date, based on delinquencies such Contract has a remaining principal balance of at least $500.
(xxiv) As of the related Cut-Off Date, such Contract is secured by a Financed Vehicle that has not been repossessed without reinstatement.
(xxv) The related Obligor(s) were located in payment Alabama, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin or Wyoming on the Transferred Mortgage Loansdate of origination of such Contract.
(xxvi) The Obligor on such Contract is either (a) a natural person residing in any state or (b) another entity, the Seller would not initiate foreclosure proceedings provided that a natural person is a joint and several Obligor with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;Contract.
(xviic) No Transferred Mortgage Loan As to all of the Funded Contracts:
(i) The aggregate Outstanding Principal Balance payable by Obligors of the Funded Contracts as of the related Cut-Off Date plus the initial deposit into the Prefunding Account equals the Original Pool Balance.
(ii) As of the related Cut-Off Date, approximately 29.86% of the Outstanding Principal Balance of all Funded Contracts is a “highattributable to loans involving new Financed Vehicles, and approximately 70.14% of the Outstanding Principal Balance of all Funded Contracts is attributable to loans involving used Financed Vehicles.
(iii) As of the related Cut-cost,” “high-cost home,” “covered,” “high-risk home” Off Date, the aggregate Outstanding Principal Balance of all Funded Contracts originated in any single state, other than California, did not equal or “predatory” loan under any applicable federal, state or local predatory or abusive lending law exceed 10%.
(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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject d) As to the New Jersey Home Ownership Security Act of 2003 each Prefunded Contract (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.except as noted be
Appears in 1 contract
Sources: Sale and Servicing Agreement (Onyx Acceptance Financial Corp)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each the Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a the Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii) and 1.04(b)(xx(xviii)) ), shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii) and 1.04(b)(xx(xviii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii) and 1.04(b)(xx(xviii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii), (xiv), (xv), (xvi), (xvii) and (xviii)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ ▇▇▇ or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a Transferred the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each In the case of all of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred such Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any In the case of all of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company or similar institution that is supervised and examined by a Federal federal or State state authority, or by a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As will have a CLTV of 100% or less as of the Closing Date, each Transferred ;
(xii) Each Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 1.860G-2;
(determined without regard to Treas. Reg. §1.860G-2(fxiii) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)Each Mortgage Loan at the time it was originated complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable predatory and abusive lending laws;
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred No Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing DateStandard & Poor’s LEVELSâ Glossary, based on delinquencies Version 5.6 Revised, Appendix E, in payment effect on the Transferred Mortgage Loansdate hereof. In addition, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred no Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home,” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred ;
(xv) No Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law;
(xvi) The information set forth in the Prepayment Charge Schedules, included as part of the Mortgage Loan Schedule at Schedule A hereto (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure);
(xvii) No Mortgage Loan was originated (or modified) on or after November 27October 1, 2002 through March 6, 2003 which is secured by a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 mortgaged property located in Georgia;
(N.J.S.A. 46:10B-22 et seq.); no Transferred xviii) Each Mortgage Loan is was made or acquired by a “High-Cost Home Loan” subject Person organized or chartered under the laws of the State of Indiana, any other state, or the United States relating to banks, trust companies, savings associations, savings banks, credit unions, or industrial land and investment companies;
(xix) [Reserved]
(c) With respect to any of the New Mexico Home Loan Protection Act foregoing representations and warranties made in subparagraphs (N.M.xiii), (xiv), (xv), (x
Appears in 1 contract
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor and the Insurer that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each the Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such the Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a the Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xiiSection 1.04(b)(i)), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such the Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xxSection 1.04(b)(i) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xxSection 1.04(b)(i)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Section 1.04(b)(i)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such the Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such the Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, Date with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. .
(i) Subject to the foregoing, the Seller represents and warrants to the Depositor, the Issuer, the Indenture Trustee and the Insurer upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to eacheach Mortgage Loan, that:
(iA) The information set forth with respect No Mortgage Loan was at the time of origination subject to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing Home Ownership and Equity Protection Act of the Transferred Mortgage Loans1994 (15.U.S.C. § 1602(c)), and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date Regulation Z (12 CFR 226.32) or dates respecting which such information is givenany comparable state law;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(ivB) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred Mortgage Loan at the time it was made complied in all material respects with applicable local, state, state and federal laws laws, including, but not limited to, all applicable predatory and abusive lending laws;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xviiC) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “"High-Cost Home Loan” " subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “"High-Cost Home Loan” " subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Lehman ABS Corp. Home Equity Loan Trust 2005-1)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing DateDate that:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement;
(ii) The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xi) and 1.04(b)(xx)1.04(b)(xvi) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xi) and 1.04(b)(xx1.04(b)(xvi) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xi) and 1.04(b)(xx1.04(b)(xvi)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date(or as of such other date as may be specified in particular representations and warranties), as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related Mortgagor thereunder to maintain the hazard insurance policy at the Mortgagor’s 's cost and expense, and on the Mortgagor’s 's failure to do so, authorizes the holder of the Mortgage to obtain and maintain such insurance at such Mortgagor’s 's cost and expense, and to seek reimbursement therefor from the Mortgagor. Where required by state law or regulation, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 1 contract
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx(xvi)) , shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx(xvi) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the any representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx)(xvi) by it) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (other than any representations and warranties made by it pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv) and (xvi)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on hereunder, as to each that, as of the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ ▇▇▇ or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each The related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxii) As of the Closing Date, other than with respect to Retained Interest, no Each Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate the time it was made complied in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loanall material respects with applicable local, state and federal laws, including, but not limited to, all applicable predatory and abusive lending laws;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xviixiii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” High Cost Loan or “predatory” Covered Loan, as applicable (as such terms are defined in the then current Standard & Poor’s LEVELS® Glossary which is now Version 5.6c Revised, Appendix E) and no mortgage loan under originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act;
(xiv) No Transferred Mortgage Loan was originated (or modified) on or after February 1, 2002 and before March 7, 2003 which is secured by a mortgaged property located in Georgia;
(xv) No Transferred Mortgage Loan that is secured by property located in Illinois is in violation of the provisions of the Illinois Interest Act (815 Ill. Comp. Stat. 205/1 et seq.);
(xvi) No Transferred Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law; The information set forth in the Prepayment Charge Schedules included as part of the Mortgage Loan Schedules at Schedules A and B (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state or and local predatory or abusive lending law (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally 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 feesthe collectibility thereof may be limited due to acceleration in connection with foreclosure); no Transferred and
(xvii) Each of the Pool 2 Mortgage Loan originated on Loans will have a debt-to-income ratio, as of the Closing Date, less than or after November 27, 2003 is a “High-Cost Home Loan” subject equal to 60%.
(c) In addition to the New Jersey Home Ownership Security Act representations and warranties set forth in Section 1.04(b), all of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject which are also made by the Seller with respect to the New Mexico Home Loan Protection Act (N.M.Bank Originated Mortgage Loans as of the Cut-off Date, the Seller hereby further represents and warrants to the Depositor upon the delivery to the Depositor on the Closing Date of any Bank Originated Mortgage Loans, but solely as to each Bank Origin
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Lehman XS Trust 2006-5)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii) and 1.04(b)(xx(xviii)) ), shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii) and 1.04(b)(xx(xviii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii) and 1.04(b)(xx(xviii)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii), (xiv), (xv), (xvi), (xvii) and (xviii)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ Mae or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each In the case of approximately 92.49% and 7.51% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien or second lien, respectively, on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) the first Mortgage, in the case of a Mortgaged Property that is secured by a perfected second lien, (2) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (23) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (34) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any In the case of approximately 92.49% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As will have a CLTV of 125% or less as of the Closing Date, each ;
(xii) Each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 1.860G-2;
(determined without regard to Treas. Reg. §1.860G-2(fxiii) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)Each Transferred 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;
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred No transferred Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing DateStandard & Poor’s LEVELS Glossary, based Version 5.6 Revised, Appendix E, in effect on delinquencies in payment on the Transferred Mortgage LoansJune 1, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No 2004. In addition, no Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home,” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no ;
(xv) No Transferred Mortgage Loan originated on or after November 27, 2003 that is a “High-Cost Home Loan” subject to secured by property located in Illinois is in violation of the New Jersey Home Ownership Security provisions of the Illinois Interest Act of 2003 (N.J.S.A. 46:10B-22 815 Ill. Comp. Stat. 205/1 et seq.); no ;
(xvi) No Transferred Mortgage Loan is a “High-Cost Home Loan” was at the time of origination subject to the New Mexico Home Loan Ownership and Equity Protection Act of 1994 (N.M.15 U.S.C. § 602(c)), Regulation Z (12 CFR 226.32) or any comparable state law;
(xvii) The information set forth in the Prepayment Charge Schedules, included as part of the Mortgage Loan Schedules at Schedules A-1 and A-2 hereto (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally o
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (SASCO Mortgage Loan Trust Series 2005-Gel1)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii) through (xvi)), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xxthrough (xvi) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xxthrough (xvi)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representation and warranties made by it pursuant to Sections 1.04(b)(xii) through (xvi)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ ▇▇▇ or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, with a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxii) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Each Transferred Mortgage Loan, at the time it was originated, complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable local, state and federal predatory and abusive lending laws;
(xvxiii) As of the Closing Date, no No Transferred Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing DateStandard & Poor’s LEVELS Glossary, based on delinquencies Version 5.6 Revised, Appendix E, in payment effect on the Transferred Mortgage Loansdate hereof. In addition, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No no Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home,” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no ;
(xiv) No Transferred Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law;
(xv) No Transferred Mortgage Loan (other than the two Mortgage Loans listed on Schedule B hereto) was originated (or modified) on or after November 27October 1, 2002 and before March 7, 2003 which is secured by a “High-Cost Home Loan” subject to mortgaged property located in Georgia; and
(xvi) No Transferred Mortgage Loan that is secured by property located in Illinois is in violation of the New Jersey Home Ownership Security provisions of the Illinois Interest Act of 2003 (N.J.S.A. 46:10B-22 et 815 Ill. Comp. Stat. 205/1 et. seq.); no Transferred .
(c) In addition to the representations and warranties set forth in Section 1.04(b), all of which are also made by the Seller with respect to the Bank Originated Mortgage Loans as of the Cut-off Date, the Seller hereby further represents and warrants to the Depositor upon the delivery to the Depositor on the Closing Date of any Bank Originated Mortgage Loans, but solely as to each Bank Originated Mortgage Loan, that, as of the Closing Date:
(i) With respect to any hazard insurance policy covering a Bank Originated Mortgage Loan is a “High-Cost Home Loan” subject to and the New Mexico Home Loan Protection Act (N.M.related Mortgaged Property, the Seller has not engaged in, and has no knowledge of the Bank’s or the borrower’s having engaged in, any act or omission which would impair the coverage of any such policy, the benefits of the endorsement provided for therein, 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 bee
Appears in 1 contract
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date or as of any Transfer Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a an Initial Transferred Mortgage Loan or a Subsequent Transferred Mortgage Loan (together, the “Transferred Mortgage Loans”) constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv) and (xvi)), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii), 1.04(b)(xix(xv) and 1.04(b)(xx(xvi) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii), 1.04(b)(xix(xv) and 1.04(b)(xx(xvi)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii), (xiv), (xv) and (xvi)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date or any Transfer Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ Mae or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each In the case of approximately 95.16% of the Initial Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any In the case of approximately 95.16% of the Initial Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Indenture Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Indenture Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Except with respect to two Mortgage Loans (or approximately 0.098% of the Initial Mortgage Loans), each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xi) Each Transferred Mortgage Loan is a debt instrument that satisfies the requirements of Section 860L(c)(i)(B) of the Code;
(xii) Each Transferred Mortgage Loan at the time it was made complied in all material respects with applicable local, state, state and federal laws laws, including, but not limited to, all applicable predatory and abusive lending laws;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending law 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); no xiv) No Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” was at the time of origination subject to the New Jersey Home Ownership Security and Equity Protection Act of 2003 1994 (N.J.S.A. 46:10B-22 et seq.15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law; no Transferred and
(xv) The information set forth in the Prepayment Charge Schedules, included as part of the Mortgage Loan Schedules at Schedules A-1 and A-2 hereto (including the Prepayment Charge Summary attached thereto) is a “High-Cost Home Loan” subject complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the New Mexico Home Loan Protection Act extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure).
(N.M.c) In addition to the representations and warranties set forth in Section 1.04(b), all of which are also made by the Seller with respect to the Initial Bank Originated Mortgage Loans and the Subsequent Bank Originated Mortgage Loans (collectively, the “Bank Originated Mortgage Loans”) upon delivery of such Bank Originated Mortgage Loans, the Seller hereby further represents and warrants to the Depositor upon the delivery to the Depositor on the Closing Date or the applicable Transfer Date of any Bank Originated Mortgage L
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Sasco Mortgage Loan Trust Series 2003-Gel1)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing DatePurchaser that:
(i) a. The Seller is a corporation company incorporated under the Law having license to do business, duly organized, validly existing existing, and in good standing under and has complied fully with all requirements of the laws governing its creation and existence and applicable Law.
b. The Seller has full corporate power and authority to own its property, to carry on its business as presently conductedexecute and deliver this Agreement, and to enter into and perform its obligations under this Agreement Agreement. Execution, delivery, and the Assignment and Assumption Agreement;
(ii) The execution and delivery by the Seller performance of this Agreement and by the Assignment and Assumption Agreement have Seller:
i. has been duly authorized by all necessary requisite corporate action on the part of the Seller; neither , and no other proceedings on the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation part of the transactions herein Seller or therein contemplatedany other Person are necessary for such authorization; and
ii. will not:
(A) violate the Law or any provision of the Memorandum and Articles of Association of the Seller; or
(B) violate, nor compliance with the provisions hereof or thereofbe in conflict with, will conflict with or result in a breach of, or constitute a default under, any of indenture, agreement for borrowed money, bond, note, instrument, or other agreement to which the provisions of any law, governmental rule, regulation, judgment, decree Seller is a Party or order binding on by which the Seller or its properties property is bound, or the certificate results of incorporation or bylaws operation of the Seller;Seller or on its ability to perform its obligations hereunder.
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, c. Assuming it constitutes a valid legal, valid, and binding obligation of the Seller Purchaser, this Agreement constitutes a legal, valid, and binding obligation of the Seller, enforceable against it in accordance with its respective terms.
d. To the best of its knowledge after reasonable inquiry, except as such enforceability may be subject to (A) applicable bankruptcy for the Seller Consents, no filing or registration with, no notice to, and insolvency laws and other similar laws affecting no permit, authorization, Consent, or approval of, any Person is required for the enforcement execution, delivery, or performance of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, to the knowledge of this Agreement by the Seller, threatened .
e. The Seller is not in default under any agreement or likely instrument of any nature whatsoever to be asserted against or affecting the Seller, before which it is a Party or by which it is bound, in any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect manner that would have a material adverse effect on its ability to perform its obligations under hereunder, or on the validity or enforceability of this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any factf. There is no action, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreementsuit, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 ofproceeding, or agreement with, any other partyinvestigation pending or, to sell and assign each Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened (i) for dissolution of the Seller; or commenced with respect to any Transferred Mortgage Loan.
(ixii) There is no proceeding pending for against the total or partial condemnation of any Mortgaged Property (orSeller, in the case of any Cooperative Loanwhich, the related cooperative unit) and each such property is undamaged by wasteif adversely determined, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to would have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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 its ability to such liens) affecting the related Mortgaged Property which are or may be liens prior toperform its obligations hereunder, or equal or coordinate with, the lien of the related Mortgage;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” validity or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act enforceability of 2003 (N.J.S.A. 46:10B-22 et seqthis Agreement.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 1 contract
Sources: Power Purchase Agreement
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv) and (xv)), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii), 1.04(b)(xix(xiv) and 1.04(b)(xx(xv) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii), 1.04(b)(xix(xiv) and 1.04(b)(xx(xv)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representation and warranties made by it pursuant to Sections 1.04(b)(xii), (xiii), (xiv) and (xv)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ Mae or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, with a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxii) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Each Transferred Mortgage Loan, at the time it was originated, complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable local, state and federal predatory and abusive lending laws;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xviixiii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” (other than in respect of one covered loan originated in the state of Georgia, which was originated by an originator regulated by the Office of Thrift Supervision and/or Office of the Comptroller of the Currency) “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending law 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); no xiv) No Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” was at the time of origination subject to the New Jersey Home Ownership Security and Equity Protection Act of 2003 1994 (N.J.S.A. 46:10B-22 et seq.15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law; no and
(xv) In addition to the foregoing representations and warranties made in subparagraphs (i) through (xiv) of this Section 1.04(b), the Seller further represents and warrants upon delivery of the Pool 1 Transferred Mortgage Loans, as to each, that:
(a) No Pool 1 Transferred Mortgage Loan is was originated in the State of Georgia between October 1, 2002 and March 7, 2003;
(b) To the best of the Seller’s knowledge, no borrower was required to purchase any credit life, disability, accident or health insurance product as a “High-Cost Home condition of obtaining the extension of credit evidenced by the Pool 1 Transferred Mortgage Loan” subject . No borrower obtained a prepaid single premium credit life, disability, accident or health insurance policy in connection with the origination of the Pool 1 Transferred Mortgage Loan; no proceeds from any Pool 1 Transferred Mortgage Loan were used to purchase single premium credit insurance policies as part of the New Mexico Home origination of, or as a condition to closing, such Pool 1 Transferred Mortgage Loan;
(c) The applicable Servicer for each Pool 1 Transferred Mortgage Loan Protection has fully furnished in the past (and the Seller shall cause the applicable Servicer to furnish in the future), in accordance with the Fair Credit Reporting Act and its implementing regulations, accurate and complete information on its borrower credit files to Equifax, Experian and Trans Union Credit Information Company, on a monthly basis;
(N.M.d) No Pool 1 Transferred Mortgage Loan imposes a Prepayment Charge for a term in excess of five years;
(e) The outstanding Scheduled Principal Balance of each Pool
Appears in 1 contract
Representations and Warranties of the Seller. (a) The Seller hereby represents makes the following representations and warrants warranties on which (i) the Issuer is deemed to have relied in acquiring the Depositor that Contracts and (ii) the Insurer is deemed to have relied in issuing the Policy; provided such representations and warranties speak as of the execution and delivery of this Agreement and as of the Closing DateDate with respect to Sections 2.02(a), (b) and (c), and as of each Prefunding Transfer Date (with respect to the Prefunded Contracts conveyed to the Trust on such date) with respect to Sections 2.02(a) and (d), but shall survive the sale, transfer and assignment of the Contracts to the Issuer and the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) As to the Seller:
(i) The Seller is duly organized and validly existing as a corporation duly organized, validly organized and existing and in good standing under the laws governing its creation and existence and has full corporate of the State of Delaware, with power and authority to own its property, properties and to carry on conduct its business as presently conductedand had at all relevant times, and has, power, authority, and legal right to enter into originate or acquire and perform its obligations under this Agreement and own the Assignment and Assumption Agreement;Contracts.
(ii) The execution Seller is duly qualified to do business as a foreign corporation in good standing, and delivery shall have obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications.
(iii) The Seller has the power and authority to execute and deliver this Agreement and to carry out its terms; the Seller has full power and authority to sell and assign the property to be sold and assigned to and deposited with the Issuer and has duly authorized such sale and assignment to the Issuer by all necessary corporate action; and the execution, delivery, and performance of this Agreement has been duly authorized by the Seller by all necessary corporate action.
(iv) This Agreement constitutes (A) a valid sale, transfer, and assignment of the Contracts, enforceable against creditors of and purchasers from the Seller and (B) a legal, valid, and binding obligation of the Seller enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or at law.
(v) The consummation of the transactions contemplated by this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part fulfillment of the Seller; neither terms hereof shall not conflict with, result in any breach of any of the execution terms and delivery of this Agreement or the Assignment and Assumption Agreementprovisions of, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict constitute (with or result in a breach of, without notice or constitute lapse of time) a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
, or any indenture, agreement, or other instrument to which the Seller is a party or by which it shall be bound; nor result in the creation or imposition of any Lien upon any of the properties of the Seller pursuant to the terms of any such indenture, agreement, or other instrument (iii) The executionother than pursuant to the Basic Documents to which the Seller is a party); nor violate any law or any order, delivery and performance by rule, or regulation applicable to the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent any court or approval of, the giving of notice to, the registration with, or the taking of any other action in respect offederal or state regulatory body, any stateadministrative agency, federal or other governmental authority instrumentality having jurisdiction over the Seller or its properties.
(vi) To the Seller's best knowledge after due inquiry, there are no proceedings or investigations pending, or threatened, before any court, regulatory body, administrative agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by other governmental instrumentality having jurisdiction over the Seller and, assuming due authorization, execution and delivery by or its properties: (A) asserting the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case invalidity of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective termsNotes, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, seeking to prevent the knowledge issuance of the Seller, threatened Notes or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to consummation of any of the transactions contemplated by this Agreement Agreement, (C) seeking any determination or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller ruling that might materially and adversely affect it or the performance by the Seller of its business, assets, operations or condition, financial or otherwiseobligations under, or the validity or enforceability of, this Agreement, the Notes, or (D) naming the Seller which might adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreementfederal income tax attributes of the Notes.
(b) The representations and warranties of As to each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made Funded Contract (except as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are noted below as being applicable only to facts, conditions either Precomputed Contracts or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:Simple Interest Contracts):
(i) The information pertaining to such Contract set forth with respect to in the Transferred Mortgage Loans on the Mortgage Loan related Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is Contracts was true and correct in all material respects at the date or dates respecting which such information is given;Closing Date.
(ii) There are no defaults As of the Closing Date, such Contract was secured by a valid and enforceable first priority security interest in favor of Onyx in the related Financed Vehicle, and such security interest has been duly perfected and is prior to all other liens upon and security interests in such Financed Vehicle which now exist or may hereafter arise or be created (other than delinquency except, as to priority, for any lien for unpaid taxes or unpaid storage or repair charges which may arise after the Closing Date in payment) in complying accordance with the terms of any MortgageUCC); such security interest is assignable, and had been assigned by Onyx to the Seller pursuant to the Purchase Agreement, and, as of the Closing Date, has no notice as been assigned by the Seller to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;the Issuer pursuant to Section 2.01(a) hereof.
(iiiA) Except If the related Contract was originated in a state in which notation of a security interest on the Title Document (or in the case of Cooperative Loanselectronic title records) is required or permitted to perfect the security interest in the related Financed Vehicle, the Title Document or the electronic title records for such Financed Vehicle shows, or, if anya new or replacement Title Document is being applied for with respect to such Financed Vehicle, each Mortgage requires all buildings or other improvements on the Title Document will be received within 180 days of the Closing Date and will show, Onyx named as the original secured party under the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards Contract as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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 a first priority security interest in such insurance at such Mortgagor’s cost and expenseFinanced Vehicle, and (B) if the related Contract was originated in a state in which the filing of a financing statement under the UCC is required to seek reimbursement therefor perfect a security interest in motor vehicles, such filings or recordings have been duly made and show Onyx named as the original secured party under the related Contract, and in either case, the Indenture Trustee on behalf of the Noteholders and the Insurer has the same rights as such secured party has or would have (if such secured party were still the owner of such Contract) against all parties claiming an interest in such Financed Vehicle. With respect to each Contract for which the Title Document has not yet been returned from the Mortgagor. Where required by state law Registrar of Titles (or regulationevidenced in the electronic title records), each Mortgagor Onyx has written evidence that such Title Documents showing Onyx as first lienholder have 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;applied for.
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien As of the MortgageClosing Date, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, to and has full right was the sole owner of each such Contract to transfer and sell each Transferred Mortgage Loan be transferred to the Depositor Issuer pursuant to Section 2.01 free of liens, claims, encumbrances and clearrights of others and, except as described upon transfer of such Contract to the Issuer pursuant to Section 2.01, the Issuer will have good and marketable title to, will have a first priority perfected security interest in paragraph and will be the sole owner of such Contract free of liens, encumbrances and rights of others.
(v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder As of the related MortgageCut-Off Date, including the Sellermost recent scheduled payment due on each such Contract had been made or was not delinquent more than 30 days and, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To to the best of the Seller’s 's knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loanall payments on the Contract were made by the related Obligors.
(ixvi) There As of the Closing Date, there is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, lien against the related cooperative unitFinanced Vehicle for delinquent taxes.
(vii) and each such property As of the Closing Date, there is undamaged by wasteno right of rescission, fireoffset, earthquake defense or earth movement, windstorm, flood, tornado or other casualty, so as counterclaim to have a material adverse effect on the value obligation of the related Mortgaged Property as security for Obligor(s) to pay the related Transferred Mortgage Loan unpaid principal or interest due under such Contract; the operation of the terms of such Contract or the use for which exercise of any right thereunder will not render such Contract unenforceable in whole or in part or subject such Contract to any right of rescission, offset, defense or counterclaim, and the premises were intended;Seller has no knowledge that such right of rescission, offset, defense or counterclaim has been asserted or threatened.
(xviii) There As of the Closing Date, to the best of the Seller's knowledge, there are no mechanics’ or similar liens or claims which have been filed filed, including liens for work, labor labor, material, storage or material (and no rights are outstanding that under the law could give rise to such liens) unpaid taxes affecting the related Mortgaged Property Financed Vehicle which are or may be liens become a lien prior to, or equal or coordinate with, the lien security interest granted by such Contract.
(ix) Such Contract, and the sale of the related Mortgage;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan associationFinanced Vehicle sold thereunder, savings bankcomplied, commercial bank, credit union, 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;
(xii) Each Transferred Mortgage Loan at the time it was made complied made, in all material respects with all applicable localfederal, statestate and local laws (and regulations thereunder), including without limitation usury, equal credit opportunity, fair credit reporting, truth-in-lending or other similar laws, the Federal Trade Commission Act, the Fair Debt Collection Practices Act, the Fair Credit Billing Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal Reserve Board's Regulations B and Z, the Servicemembers Civil Relief Act, state adoptions of the National Consumer Act and the Uniform Consumer Credit Code, and federal other applicable state laws regulating retail installment sales contracts and loans in general and motor vehicle retail installment contracts and loans in particular; and the consummation of the transactions herein contemplated, including, but without limitation, the transfer of ownership of such Contracts to the Issuer and the receipt of interest by the Noteholders, will not violate any applicable federal, state or local law. Such Contract was acquired from a Dealer without any fraud or misrepresentation on the part of Seller or Onyx.
(x) Such Contract is the legal, valid and binding obligation of the related Obligor(s) thereunder and is enforceable in accordance with its terms, except only as such enforcement may be limited toby bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally; each party to such Contract had full legal capacity to execute and deliver such Contract and all applicable predatory other documents related thereto and abusive lending laws;to grant the security interest purported to be granted thereby; the terms of such Contract have not been waived, amended or modified in any respect, except by instruments that are part of the related Contract Documents, and no such waiver, amendment or modification has caused such Contract to fail to meet all of the representations, warranties and conditions, set forth herein with respect thereto. No Obligor on such Contract is a federal, state or local government entity.
(xi) Such Contract contains customary and enforceable provisions such as to render the rights and remedies of the holder or assignee thereof adequate for the practical realization against the collateral of the benefits of the security, subject, as to enforceability, to bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors' rights generally.
(xii) As of the Closing Date, (a) there was no default, breach, violation or event permitting acceleration existing under such Contract (except payment delinquencies permitted by subparagraph (v) above), (b) there does not exist any continuing condition that with notice or lapse of time would constitute a default, breach, violation or event permitting acceleration existing under such Contract, and (c) the Seller has not waived any such default, breach, violation or event permitting acceleration except payment delinquencies permitted by subparagraph (v) above.
(xiii) As of the Closing Date, Date each Transferred Mortgage Loan is a “qualified mortgage” within related Financed Vehicle will be covered by the meaning Blanket Insurance Policy; each of Section 860G Onyx and the Seller shall at all times comply with all of the Code and Treas. Reg. §1.860G-2 (determined without regard provisions of such insurance policy applicable to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation it so long as such insurance policy is a qualified mortgage for a temporary period);in effect.
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides (a) such Contract will require that the related Obligor(s) obtain and maintain in effect for interest other than at either the related Financed Vehicle a comprehensive and collision insurance policy (i) a single fixed rate in effect throughout an amount at least equal to the term lesser of (x) its maximum insurable value or (y) the Transferred Mortgage Loan or principal amount due from the related Obligor(s) under such Contract, (ii) naming Onyx as a loss payee and (iii) insuring against loss and damage due to fire, theft, transportation, collision and other risks generally covered by comprehensive and collision coverage and (b) the Servicer shall have put in place a vendor's single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term interest insurance policy providing coverage upon repossession of the Transferred Mortgage Loan;related Financed Vehicle in an amount equal to the lesser of the actual cash value of such Financed Vehicle, the cost of repair or replacement for such Financed Vehicle and the unpaid balance of the related Contract. Each of Onyx and the Seller shall at all times comply with all of the provisions of such insurance policies applicable to it.
(xv) Such Contract was acquired by Onyx from a Dealer with which it ordinarily does business, and no adverse selection procedures have been utilized in selecting such Contract from all other similar contracts purchased or originated by Onyx or any subsidiary.
(xvi) Payments under such Contract have been applied in accordance with the Rule of 78's Method, the Actuarial Method or the Simple Interest Method, as provided in the applicable Contract, and are due monthly in substantially equal amounts through its Maturity Date sufficient to fully amortize the principal balance of such Contract by its Maturity Date.
(xvii) There is only one original of such Contract and such original, together with all other related Contract Documents, is being held by the Custodian.
(xviii) As of the Closing Date, no Transferred Mortgage Loan the Servicer has clearly marked its electronic records to indicate that such Contract is owned by the subject Issuer.
(xix) At the date of pending or final foreclosure origination of the Contract, the original principal balance of such Contract was not greater than the purchase price to the related Obligor(s) (including taxes, warranties, licenses and related charges) of the related Financed Vehicle.
(xx) The Seller has not received notice that any Obligor under such Contract was in bankruptcy proceedings, as of the related Cut-Off Date;
(xvixxi) Such Contract had an original maturity of not more than 72 months and as of the related Cut-Off Date, such Contract has a remaining maturity of 72 months or less;
(xxii) The first scheduled monthly payment for at least 80% of the Initial Contracts (by Outstanding Principal Balance) is due on or before August 31, 2004, and the first scheduled monthly payment for at least 80% of the Subsequent Contracts (by Outstanding Principal Balance) is due on or before September 30, 2004.
(xxiii) As of the Closing related Cut-Off Date, based on delinquencies such Contract has a remaining principal balance of at least $500.
(xxiv) As of the related Cut-Off Date, such Contract is secured by a Financed Vehicle that has not been repossessed without reinstatement.
(xxv) The related Obligor(s) were located in payment Alabama, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin or Wyoming on the Transferred Mortgage Loansdate of origination of such Contract.
(xxvi) The Obligor on such Contract is either (a) a natural person residing in any state or (b) another entity, the Seller would not initiate foreclosure proceedings provided that a natural person is a joint and several Obligor with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;Contract.
(xviic) No Transferred Mortgage Loan As to all of the Funded Contracts:
(i) The aggregate Outstanding Principal Balance payable by Obligors of the Funded Contracts as of the related Cut-Off Date plus the initial deposit into the Prefunding Account equals the Original Pool Balance.
(ii) As of the related Cut-Off Date, approximately 28.28% of the Outstanding Principal Balance of all Funded Contracts is a “highattributable to loans involving new Financed Vehicles, and approximately 71.72% of the Outstanding Principal Balance of all Funded Contracts is attributable to loans involving used Financed Vehicles.
(iii) As of the related Cut-cost,” “high-cost home,” “covered,” “high-risk home” Off Date, the aggregate Outstanding Principal Balance of all Funded Contracts originated in any single state, other than California, did not equal or “predatory” loan under any applicable federal, state or local predatory or abusive lending law exceed 10%.
(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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject d) As to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.each Prefunded Contract
Appears in 1 contract
Sources: Sale and Servicing Agreement (Onyx Acceptance Financial Corp)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx(xvi)) , shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx(xvi) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the any representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii(xiii), 1.04(b)(xviii(xiv), 1.04(b)(xix(xv) and 1.04(b)(xx)(xvi) by it) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (other than any representations and warranties made by it pursuant to Sections 1.04(b)(xii), (xiii), (xiv), (xv) and (xvi)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on hereunder, as to each that, as of the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA F▇▇▇▇▇ Mae or FHLMCF▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each The related Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxii) As of Each Transferred Mortgage Loan at the Closing Datetime it was made complied in all material respects with applicable local, other than with respect to Retained Intereststate and federal laws, including, but not limited to, all applicable predatory, abusive and fair lending laws; and, specifically, (a) no Transferred Mortgage Loan provides for interest other than at either (i) secured by a single fixed rate Mortgaged Property located in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 New Jersey is a “High-Cost Home Loan” subject to as defined in the New Jersey Home Ownership Security Act of effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.); (b) no Transferred Mortgage Loan secured by a Mortgaged Property located in New Mexico is a “High-Cost Home Loan” subject to as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Lehman XS 2006-13)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ ▇▇▇ or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a Transferred the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each In the case of approximately 96.12% and 3.88% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien or second lien, respectively, on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) the first Mortgage, in the case of a Mortgaged Property that is secured by a perfected second lien, (2) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (23) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred such Mortgage Loan, and (34) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any In the case of approximately 96.12% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by will have a savings and loan association, savings bank, commercial bank, credit union, insurance company CLTV of 100% 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;
(xii) Each Transferred 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;
(xiii) As less as of the Closing Date, each Transferred ;
(xi) Each Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxii) As of the Closing Date, other than with respect to Retained Interest, no Transferred Each Mortgage Loan provides for interest other than at either 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, abusive and fair lending laws; and, specifically, (ia) a single fixed rate in effect throughout the term of the Transferred no Mortgage Loan or (ii) secured by a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) Mortgaged Property located in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 New Jersey is a “High-Cost Home Loan” subject to as defined in the New Jersey Home Ownership Security Act of effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.); (b) no Transferred Mortgage Loan secured by a Mortgaged Property located in New Mexico is a “High-Cost Home Loan” subject to as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (BNC Mortgage Loan Trust 2006-1)
Representations and Warranties of the Seller. The Seller (on behalf of itself and, with respect to the representations and warranties contained in subsections (e) through (h), each Registrable Securities Holder) hereby makes the following representations and warranties to the Buyer and Star Maritime:
(a) The Seller hereby represents it is duly organized and warrants to the Depositor that as of the Closing Date:
(i) The Seller is a corporation duly organized, validly existing and in good standing under the laws governing of the jurisdiction of its creation and existence and has organization with full corporate power and authority to own its property, to carry on its business as presently conducted, execute and to enter into and perform its obligations under deliver this Agreement and to perform all of the Assignment duties and Assumption obligations to be performed by it under this Agreement;
(iib) The execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly authorized, executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreementit, and the Depositorconstitutes its valid, in the case of this Agreement, constitutes a valid legal and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and limited by bankruptcy, insolvency laws and or other similar laws of general application relating to or affecting the enforcement of the creditors' rights of creditors generally and (B) in general or by general principles of equity regardless of whether such enforcement is considered in a proceeding in equity at law or at law; andequity;
(vc) There its execution and delivery of, the performance and incurrence by it of its obligations and liabilities under, and the consummation by it of the other transactions contemplated by, this Agreement do not and will not (i) violate any provision of its organizational documents, (ii) violate any applicable law, rule or regulation, (iii) violate any order, writ, injunction or decree of any court or governmental or regulatory authority or agency or any arbitral award applicable to it or its affiliates or (iv) subject to the consent of applicable charterers of the Vessels, result in a breach of, constitute a default under, require any consent under, or result in the acceleration or required prepayment of any indebtedness pursuant to the terms of, any agreement or instrument of which it is a party or by which it is bound or to which it is subject, or result in the creation or imposition of any lien upon any property of it pursuant to the terms of any such agreement or instrument, in the case of (i), (ii), (iii) or (iv) which could have a material adverse effect on the transactions contemplated hereby;
(d) there are no legal or governmental actions, suits or proceedings pending or, to the knowledge of the Sellerits knowledge, threatened or likely to be asserted against or affecting the Seller, it before or by any court, administrative agencyagency or tribunal which, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and it, could reasonably be expected to adversely affect the ability of it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(ive) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage it is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(x) 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;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgageaccredited investor” within the meaning of Section 860G Rule 501 of Regulation D under the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)Securities Act;
(xivf) As of it has received or has had full access to all the Closing Date, other than information it considers necessary or appropriate to make an informed decision with respect to Retained Interestthe acquisition of Buyer Common Stock;
(g) the Buyer Common Stock being acquired by it are being acquired for its own account for the purpose of investment and not with a view to, no Transferred Mortgage Loan provides or for interest other than at either (i) a single fixed rate resale in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (connection with, any distribution thereof within the meaning of Treas. Reg. §1.860G-1(a)(3)the Securities Act; and
(h) it understands that (i) the shares of Buyer Common Stock have not been registered under the Securities Act by reason of their issuance in effect throughout a transaction exempt from the term registration requirements of the Transferred Mortgage Loan;
Securities Act, (xvii) As the shares of the Closing DateBuyer Common Stock must be held indefinitely (subject, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Datehowever, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on Buyer's obligation to effect the registration of registrable securities in accordance with Section 5 hereof) unless a subsequent disposition thereof is registered under the Securities Act or is exempt from such Transferred Mortgage Loan;
registration, and (xviiiii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject the shares of Buyer Common Stock will bear the legend to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seqsuch effect set forth in Section 5(1) hereof.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.
Appears in 1 contract
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement[Reserved];
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first junior lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) senior liens of such Mortgage, (2) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (23) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (34) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first second lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy[Reserved];
(viii) To the best of the Seller’s knowledge, no No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As will have a CLTV of 100% or less as of the Closing Date, each Transferred ;
(xii) Each Mortgage Loan that is secured by residential real property (or a leasehold interest therein) has a loan-to-value ratio of 100% or less (by Scheduled Principal Balance as of the Cut-off Date). Each Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxiii) As of the Closing Date, other than with respect to Retained Interest, no Transferred Each Mortgage Loan provides for interest other than at either the time it was originated, complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable local, state and federal predatory and abusive lending laws; and, specifically, (ia) a single fixed rate in effect throughout the term of the Transferred no Mortgage Loan or (ii) secured by a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) Mortgaged Property located in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 New Jersey is a “High-Cost Home Loan” subject to as defined in the New Jersey Home Ownership Security Act of effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.); (b) no Transferred Mortgage Loan secured by a Mortgaged Property located in New Mexico is a “High-Cost Home Loan” subject to as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Sasco 2006-S4)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi) and 1.04(b)(xx(xvii)) )), shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi) and 1.04(b)(xx(xvii) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi) and 1.04(b)(xx)(xvii) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii), (xiv), (xv), (xvi) and (xvii) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ Mae or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a Transferred the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each In the case of approximately 96.07% and 3.93% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien or second lien, respectively, on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) the first Mortgage, in the case of a Mortgaged Property that is secured by a perfected second lien, (2) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (23) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred such Mortgage Loan, and (34) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any In the case of approximately 3.93% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(x) [Reserved]
(xi) Each Transferred Mortgage Loan was originated by will have a savings and loan association, savings bank, commercial bank, credit union, insurance company CLTV of 100% 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 less as of the National Housing ActClosing Date;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 1.860G-2;
(determined without regard to Treas. Reg. §1.860G-2(fxiii) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)Each Mortgage Loan at the time it was originated complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable predatory and abusive lending laws;
(xiv) As No Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the then current Standard & Poor’s LEVELSâ Glossary, which as of the Closing DateDate is Version 5.6B Revised, other than with respect to Retained InterestAppendix E, in effect on the date hereof. In addition, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home,” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred ;
(xv) No Mortgage Loan was at the time of origination subject to the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law;
(xvi) The information set forth in the Prepayment Charge Schedules, included as part of the Mortgage Loan Schedule at Schedules A hereto (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws affecting creditor’s rights generally or the collectibility thereof may be limited due to acceleration in connection with foreclosure); and
(xvii) No Mortgage Loan was originated (or modified) on or after November 27October 1, 2002 through March 6, 2003 which is secured by a “High-Cost Home Loan” subject mortgaged property located in Georgia;
(c) With respect to any of the New Jersey Home Ownership Security Act foregoing representations and warranties made in subparagraphs (xiii) (xiv), (xv), (xvi) and (xvii) of 2003 (N.J.S.A. 46:10B-22 et seq.Section 1.04(b); no Transferred , a breach of any such representations or warranties shall be deemed to materially and adversely affect the value of the affected Mortgage Loan and the interests of Certificateholders therein, irrespective of the Seller’s knowledge of such breach. It is a “High-Cost Home Loan” subject to understood and agreed that the New Mexico Home Loan Protection Act (N.M.representations and warranties set forth in Section 1.04(b) herein shall survive the Cl
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Structured Asset Securities Corp. 2005-Rms1)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that Purchaser, as of the Closing DateDate (or if otherwise specified below, as of the date so specified):
(a) As to the Seller:
(i) The Seller is a corporation national banking association duly organized, organized and validly existing and in good standing under the laws governing its creation of the United States of America and existence and is in compliance with the laws of each state in which any Mortgaged Property is located to the extent necessary to ensure the enforceability of each Mortgage Loan;
(ii) The Seller has full corporate the power and authority to own its propertymake, to carry on its business as presently conductedexecute, and to enter into deliver and perform its obligations under this Agreement and the Assignment transactions contemplated under this Agreement, and Assumption has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement;
(iiiii) The execution and delivery by Seller is not required to obtain the Seller consent of any other Person or any consents, licenses, approvals or authorizations from, or registrations or declarations with, any governmental authority, bureau or agency in connection with the execution, delivery, performance, validity or enforceability of this Agreement and the Assignment and Assumption Agreement Agreement, except for such consents, licenses, approvals or authorizations, or registrations or declarations, as shall have been duly authorized by all necessary corporate action on obtained or filed, as the part of the Seller; neither the case may be;
(iv) The execution and delivery of this Agreement or by the Assignment Seller and Assumption Agreement, nor the consummation of the transactions herein or therein contemplated, nor its performance and compliance with the provisions hereof terms of this Agreement will not violate the Seller's Articles of Association or thereofBylaws or constitute a material default (or an event which, will conflict with notice or lapse of time, or both, would constitute a material default) under, or result in a the material breach of, any material contract, agreement or constitute other instrument to which the Seller is a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree party or order binding on which may be applicable to the Seller or any of its properties or assets;
(v) There is no pending or, to the certificate of incorporation or bylaws best of the Seller's knowledge, threatened, actions, suits, proceedings or investigations before any court, administrative agency, arbitrator or governmental body that, if decided adversely, would materially and adversely affect (A) the condition (financial or otherwise), business or operations of the Seller, (B) the ability of the Seller to perform its obligations under, or the validity or enforceability of, the Basic Documents to which it is a party or (C) the transactions contemplated by this Agreement;
(iiivi) The execution, delivery and performance by the Seller of this This Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a legal, valid and binding obligation of the Seller Seller, enforceable against it the Seller in accordance with its respective terms, except as such enforceability may be subject to (A) limited by applicable bankruptcy and insolvency laws bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors' rights in general, as they may be applied in the rights context of creditors generally the insolvency of a national banking association, and by general equity principles (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law), and by public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to provide indemnification from liabilities under applicable securities laws;
(vii) This Agreement constitutes a valid transfer and assignment to the Purchaser of all right, title and interest of the Seller in and to the Mortgage Loans, including the Cut-Off Date Principal Balances now existing and all Additional Balances thereafter arising to and including the day immediately preceding the Rapid Amortization Period, all monies due or to become due with respect thereto, and all proceeds of such Cut-Off Date Principal Balances with respect to the Mortgage Loans; and
(vviii) There are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) The Seller is not in default with respect to any order or decree of the transactions contemplated by this Agreement any court or the Assignment and Assumption Agreement any order, regulation or (B) with respect to demand of any other matter federal, state, municipal or governmental agency, which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller default might have consequences that would materially and adversely affect it or its business, assets, operations or condition, the condition (financial or otherwise, ) or operations of the Seller or its properties or might have consequences that would materially adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreementperformance hereunder.
(b) The representations and warranties of As to each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made Loan (except as otherwise specified below) as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:
(i) The information pertaining to each Mortgage Loan set forth with respect to the Transferred Mortgage Loans on in the Mortgage Loan Schedule provides an accurate listing of delivered by the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is Seller was true and correct in all material respects at as of the date or dates respecting which such information is giveninitially furnished;
(ii) There are no defaults (Each Mortgaged Property is improved by a residential dwelling, which, to the best of the Seller's knowledge, does not constitute property other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paidreal property under state law;
(iii) Except in Each Mortgage Loan is being serviced by the case of Cooperative Loans, if any, Seller and there was only one originally executed Loan Agreement not stamped as a duplicate copy with respect to each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each The Loan Agreement with respect to each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescissionLoan bears an adjustable Loan Rate;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositorherein contemplated, the Seller held good and indefeasible title to, and was the sole owner of, each Mortgage Loan conveyed by the Seller subject to no liens (other than, with respect to any Mortgage Loan in a (A) second lien position, the lien of record the related first mortgage and holder (B) third lien position, the lien of each Transferred Mortgage Loan, the related first mortgage and the Seller had good and marketable title theretorelated second mortgage), and has full right to charges, mortgages, encumbrances or rights of others or other liens which will not be released simultaneously with such transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, assignment and has full right and authority, subject to no interest or participation of, or agreement with, any other party, under all governmental and regulatory bodies having jurisdiction over the ownership of the applicable Mortgage Loans to sell and assign each Transferred Mortgage Loan the same pursuant to this Agreement;
(viivi) Each Transferred Mortgage Loan To the best of the Seller's knowledge, there is no delinquent recording or other than tax or fee or assessment lien on any Cooperative Loan is covered by either (i) an attorney’s opinion of title Mortgaged Property, and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related each Mortgaged Property is located free of material damage and is in good repair;
(vii) No Mortgage Loan is subject to any right of rescission, valid set-off, counterclaim or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form defense, including the defense of policy usury, nor will the operation of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator any of the Transferred terms of the Loan Agreement or the Mortgage relating to any Mortgage Loan, and its successors and assignsor the exercise of any right thereunder, as to the first priority lien of the render either such Loan Agreement or such Mortgage unenforceable in the original principal amount of the Transferred Mortgage Loan (whole or in part, or subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policyright of rescission, the originator is the sole insured of such mortgagee Title Insurance Policyset-off, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgagecounterclaim or defense, including the Sellerdefense of usury, and no such right of rescission, set-off, counterclaim or defense has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policybeen asserted with respect thereto;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced each Mortgage Loan at the time it was made complied in all material respects with respect to any Transferred Mortgage Loan.applicable local, state and federal laws, including, without limitation, usury, equal credit opportunity, disclosure and recording laws;
(ix) A policy of hazard insurance and flood insurance, if applicable, was required from the Mortgagor for the Mortgage Loan when the Mortgage Loan was originated;
(x) Each Mortgage Loan is the legal, valid and binding obligation of the maker thereof and is enforceable in accordance with its terms, except only as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and by general principles of equity (whether considered in a proceeding or action in equity or at law);
(xi) No Mortgage Loan is subject to the Home Ownership and Equity Protection Act of 1994 or any comparable state law. Furthermore, no Mortgage Loan either currently has, or in the future will have, single premium life provisions as part of the Loan Agreement;
(xii) Each Mortgage Loan has an associated CLTV of no higher than 100%;
(xiii) There is no proceeding pending or threatened for the total or partial condemnation of the Mortgaged Property, nor is such a proceeding currently occurring;
(xiv) The related Loan Agreement is not and has not been secured by any collateral, pledged account or other security except the lien of the corresponding Mortgage;
(xv) With respect to each Mortgage Loan, the related Mortgage File contains or will contain each of the documents and instruments specified to be included therein;
(xvi) With respect to each Mortgage Loan that is not a first mortgage loan, either (i) no consent for the Mortgage Loan is required by the holder or holders of the related prior lien, (ii) such consent has been obtained and is contained in the related Mortgage File or (iii) no consent for the Mortgage Loan was required by relevant law;
(xvii) The Mortgaged Property is located in the state identified in the Mortgage Loan Schedule and consists of a single parcel of real property with a residential dwelling erected thereon;
(orxviii) The related Mortgage contains customary and enforceable (subject to clause (x)) provisions which render the rights and remedies of the holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security, including, (i) in the case of any Cooperative Loana Mortgage designated as a deed of trust, the related cooperative unitby trustee’s sale, and (ii) and each such property otherwise by judicial foreclosure. There is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado no homestead or other casualty, so as exemption available to have a material adverse effect on the value of Mortgagor which would materially interfere with the related right to sell the Mortgaged Property as security for the related Transferred Mortgage Loan at a trustee’s sale or the use for which right to foreclose the premises were intendedMortgage;
(xxix) There To the best of the Seller's knowledge, there is no default, breach, violation or event of acceleration existing under the Mortgage or the related Loan Agreement and no event which, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration; and the Seller has not waived any default, breach, violation or event of acceleration;
(xx) At origination, each Mortgage Loan has a draw period of not less than 60 months;
(xxi) The Loan Agreement with respect to each Mortgage Loan bears an adjustable Loan Rate with an index plus a margin that equals a rate per annum of no less than Prime minus 1.000%;
(xxii) 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 (and no rights are outstanding that under the law could give rise to such liens) affecting the related Mortgaged Property which are are, or may be liens prior or equal to, or equal or coordinate subordinate with, the lien of the related Mortgage, except liens which are fully insured against by a title insurance policy referred to in clause (xxiv) below;
(xixxiii) Each Transferred As of the Cut-Off Date, no Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company 30 days or similar institution that is supervised and examined by a Federal more delinquent in payment of principal 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 Actinterest;
(xiixxiv) A title search or other assurance of title customary in the relevant jurisdiction was obtained with respect to each Mortgage Loan;
(xxv) Each Transferred original Mortgage was recorded, and all subsequent assignments of the original Mortgage (other than the Assignments of Mortgage delivered pursuant to Section 2.1(d)(iii)) have been recorded in the appropriate jurisdictions wherein such recordation is necessary to perfect the lien thereof (or are in the process of being recorded in accordance with local law);
(xxvi) The Seller has not transferred the Mortgage Loans to the Purchaser with any intent to hinder, delay or defraud any of its creditors;
(xxvii) No selection procedure reasonably believed by the Seller to be adverse to the interests of the Securityholders was utilized in selecting the Mortgage Loans;
(xxviii) The Minimum Monthly Payment with respect to any Mortgage Loan is not less than the interest accrued at the time it was made complied applicable Loan Rate on the average daily Principal Balance during the interest period relating to the date on which such Minimum Monthly Payment is due;
(xxix) The Seller has not received a notice of default of any senior mortgage loan related to a Mortgaged Property which has not been cured by a party other than the Seller;
(xxx) No instrument of release or waiver has been executed in connection with the Mortgage Loans, and no Mortgagor has been released, in whole or in part, from its obligations in connection therewith;
(xxxi) Each Mortgage Loan has been originated by the Seller in compliance in all material respects with applicable local, state, and federal laws including, but not limited to, all applicable predatory and abusive lending laws;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period);
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate Seller’s internal underwriting policies as in effect throughout on the term date of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning origination of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred such Mortgage Loan;
(xvxxxii) Other than provisions relating to “promotional Finance Charges” and "promotional Advances," as each such term is used in the related Loan Agreements, or any similar terms used in any of the related Loan Agreements, there are no provisions in any of the related Loan Agreements that would interfere with the allocation provisions of the second sentence of Section 2.4;
(xxxiii) No “Promotional Advances,” as such term is used in the related Loan Agreements or any other similar type of advance that would be entitled to an allocation of payment contrary to the second sentence of Section 2.4 will be extended under any Mortgage Loan after the date on which the Rapid Amortization Period commences;
(xxxiv) None of the Mortgage Notes that constitute or evidence the Mortgage Loans has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Purchaser;
(xxxv) None of the Mortgage Loans are “home loans” or “covered home loans” as defined in the Georgia Fair Lending Act, as amended;
(xxxvi) As of the Closing Cut-Off Date, no Transferred the minimum CLTV of a Mortgage Loan is 2.00%, the subject highest CLTV of pending or final foreclosure proceedingsa Mortgage Loan is 100.00% and the weighted average CLTV for the Mortgage Loans is approximately 77.68%;
(xvixxxvii) As of the Closing Cut-Off Date, based on delinquencies in payment on no more than approximately 18.87% of the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loanby Cut-Off Date Principal Balance, are secured by Mortgaged Properties which may have been appraised using a statistical property evaluation method provided by CASA®;
(xviixxxviii) No Transferred As of the Cut-Off Date, no more than approximately 1.50% of the Mortgage Loans, by Cut-Off Date Principal Balance, are secured by Mortgaged Properties which may have been appraised using a statistical property evaluation method provided by vendors other than CASA;
(xxxix) As of the Cut-Off Date, the Loan Rates on the Mortgage Loans range between 3.750% per annum and 9.850% per annum. As of the Cut-Off Date, the weighted average Loan Rate for the Mortgage Loans is approximately 4.799% per annum; (xl) As of the Cut-Off Date, no more than approximately 21.81%, 19.13%, 13.65%, 12.89% and 10.51% of the Mortgage Loans, by Cut-Off Date Principal Balance, are secured by Mortgaged Properties located in Florida, New Jersey, North Carolina, Pennsylvania and Virginia, respectively;
(A) Each Mortgaged Property consists of a “highsingle parcel of real property with a single family or multi-cost,” “high-cost home,” “covered,” “high-risk home” family residence erected thereon, or “predatory” loan under any applicable federalan individual condominium unit, state a manufactured housing unit or local predatory or abusive lending law agricultural property with a residence erected thereon. (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); no Transferred Mortgage Loan originated on or after November 27, 2003 is a “High-Cost Home Loan” subject B) With respect to the New Jersey Home Ownership Security Act of 2003 Mortgage Loans, (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a) approximately 4.49% (by Cut-Off Date Principal Balance) are secured by real property improved by individual condominium units, (b) approximately 91.96% (by Cut-Off Date Principal Balance) are secured by real property with a “Highsingle family residence erected thereon, (c) approximately 3.39% (by Cut-Cost Home Loan” subject to the New Mexico Home Loan Protection Act Off Date Principal Balance) are secured by real property with a multi-family residence erected thereon, (N.M.d) approximately 0.15% (by Cut-Off Date Principal Balance) are secured by real property improved by manufactured housing and (e) approximately 0.01% are secured by agricultural property with a residence thereon;
Appears in 1 contract
Sources: Mortgage Loan Purchase Agreement (Wachovia Asset Securitization Inc 2002 He2 Trust)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement and this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each the Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such the Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a the Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xiii) through (xix)), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such the Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xiii) and 1.04(b)(xxthrough (xix) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix1.04(b)(xiii) and 1.04(b)(xxthrough (xix)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii) through (xix)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such the Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such the Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that, as of the Closing Date:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ ▇▇▇ or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a Transferred the Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred such Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no No foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(x) [Reserved];
(xi) Each Transferred Mortgage Loan was originated by will have a savings and loan association, savings bank, commercial bank, credit union, insurance company LTV of 105% 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 less as of the National Housing ActClosing Date;
(xii) Each Transferred 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;
(xiii) As of the Closing Date, each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 (determined without regard to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)1.860G-2;
(xivxiii) As of the Closing Date, other than with respect to Retained Interest, no Transferred Each Mortgage Loan provides for interest other than at either the time it was originated complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable local, state and federal predatory, abusive and fair lending laws; and, specifically, (ia) a single fixed rate in effect throughout the term of the Transferred no Mortgage Loan or (ii) secured by a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) Mortgaged Property located in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no Transferred Mortgage Loan is the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no Transferred Mortgage Loan originated on or after November 27, 2003 New Jersey is a “High-Cost Home Loan” subject to as defined in the New Jersey Home Ownership Security Act of effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.); (b) no Transferred Mortgage Loan secured by a Mortgaged Property located in New Mexico is a “High-Cost Home Loan” subject to as defined in the New Mexico Home Loan Protection Act effective January 1, 2004 (N.M.
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (First Franklin Mortgage Loan Trust 2006-Ff17)
Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Depositor that as of the Closing Date:
(i) The the Seller is a corporation duly organized, validly existing and in good standing under the laws governing its creation and existence and has full corporate power and authority to own its property, to carry on its business as presently conducted, conducted and to enter into and perform its obligations under this Agreement and the Assignment and Assumption Agreement and this Agreement;
(ii) The the execution and delivery by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement have been duly authorized by all necessary corporate action on the part of the Seller; neither the execution and delivery of this Agreement or the Assignment and Assumption Agreement or this Agreement, nor the consummation of the transactions therein or herein or therein contemplated, nor compliance with the provisions hereof thereof or thereofhereof, will conflict with or result in a breach of, or constitute a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
(iii) The the execution, delivery and performance by the Seller of this Agreement and the Assignment and Assumption Agreement and this Agreement and the consummation of the transactions contemplated thereby and hereby and thereby do not require the consent or approval of, the giving of notice to, the registration with, or the taking of any other action in respect of, any state, federal or other governmental authority or agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each each of this Agreement and the Assignment and Assumption Agreement and this Agreement has been duly executed and delivered by the Seller and, assuming due authorization, execution and delivery by the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective terms, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There there are no actions, suits or proceedings pending or, to the knowledge of the Seller, threatened or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to any of the transactions contemplated by this Agreement or the Assignment and Assumption Agreement or this Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller materially and adversely affect it or its business, assets, operations or condition, financial or otherwise, or adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreement or this Agreement.
(b) The representations and warranties of each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than except in the case of a breach by the Seller of the representations and warranties made by it pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii), (xviii) and 1.04(b)(xx(xix)) ), shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii), (xviii) and 1.04(b)(xx(xix) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than except in the case of those representations and warranties made pursuant to Sections 1.04(b)(xii1.04(b)(xiii), 1.04(b)(xvii(xiv), 1.04(b)(xviii(xv), 1.04(b)(xix(xvi), (xvii), (xviii) and 1.04(b)(xx(xix)) are applicable only to facts, conditions or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans (except in the case of those representations and warranties made by it pursuant to Sections 1.04(b)(xiii), (xiv), (xv), (xvi), (xvii), (xviii) and (xix)) if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Datehereunder, as to each, that:
(i) The information set forth with respect to the Transferred Mortgage Loans on the Mortgage Loan Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is true and correct in all material respects at the date or dates respecting which such information is given;
(ii) There are no defaults (other than delinquency in payment) in complying with the terms of any Mortgage, and the Seller has no notice as to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;
(iii) Except in the case of Cooperative Loans, if any, each Mortgage requires all buildings or other improvements on the related Mortgaged Property to be 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 related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA ▇▇▇▇▇▇ Mae or FHLMC▇▇▇▇▇▇▇ Mac. If upon origination of a the Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) ), a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect effect, which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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, each 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each In the case of approximately 97.65% and 2.35% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), the related Mortgage evidences a valid, subsisting, enforceable and perfected first lien or second lien, respectively, on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) the first Mortgage, in the case of a Mortgaged Property that is secured by a perfected second lien, (2) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (23) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable such Transferred Mortgage Loan, and (34) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any In the case of approximately 97.65% of the Mortgage Loans (by Scheduled Principal Balance as of the Cut-off Date), any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, and has full right to transfer and sell each Transferred Mortgage Loan to the Depositor free and clear, except as described in paragraph (v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder of the related Mortgage, including the Seller, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To the best of the Seller’s knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loan.
(ix) . There is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, the related cooperative unit) and each such property is undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty, so as to have a material adverse effect on the value of the related Mortgaged Property as security for the related Transferred Mortgage Loan or the use for which the premises were intended;
(xix) 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;
(xix) Each Transferred Mortgage Loan was originated by a savings and loan association, savings bank, commercial bank, credit union, 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 sections 203 and 211 of the National Housing Act;
(xiixi) Each Transferred 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;
(xiii) As will have a CLTV of 100% or less as of the Closing Date, each ;
(xii) Each Transferred Mortgage Loan is a “qualified mortgage” within the meaning of Section 860G of the Code and Treas. Reg. §1.860G-2 1.860G-2;
(determined without regard to Treas. Reg. §1.860G-2(fxiii) or any similar rule that provides that a defective obligation is a qualified mortgage for a temporary period)Each Transferred Mortgage Loan at the time it was originated complied in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable local, state and federal predatory and abusive lending laws;
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides for interest other than at either (i) a single fixed rate in effect throughout the term of the Transferred Mortgage Loan or (ii) a single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term of the Transferred Mortgage Loan;
(xv) As of the Closing Date, no No Transferred Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the subject of pending or final foreclosure proceedings;
(xvi) As of the Closing DateStandard & Poor’s LEVELSâ Glossary, based on delinquencies Version 5.6 Revised, Appendix E, in payment effect on the Transferred Mortgage Loansdate hereof. In addition, the Seller would not initiate foreclosure proceedings with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;
(xvii) No no Transferred Mortgage Loan is a “high-cost,” “high-cost home,” “covered,” “high-risk home,” or “predatory” loan under any applicable federal, state or local predatory or abusive lending 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); no ;
(xv) No Transferred Mortgage Loan originated on or after November 27, 2003 that is a “High-Cost Home Loan” subject to secured by property located in Illinois is in violation of the New Jersey Home Ownership Security provisions of the Illinois Interest Act of 2003 (N.J.S.A. 46:10B-22 815 Ill. Comp. Stat. 205/1 et seq.); no ;
(xvi) No Transferred Mortgage Loan is a “High-Cost Home Loan” was at the time of origination subject to the New Mexico Home Loan Ownership and Equity Protection Act of 1994 (N.M.15 U.S.C. § 1602(c)), Regulation Z (12 CFR 226.32) or any comparable state law;
(xvii) The information set forth in the Prepayment Charge Schedules, included as part of the Mortgage Loan Schedules at Schedules A-1 and A-2 hereto (including the Prepayment Charge Summary attached thereto) is complete, true and correct in all material respects on the date or dates on which such information is furnished and each Prepayment Charge is permissible, originated in compliance with, and enforceable in accordance with its terms under, applicable federal, state and local law (except to the extent that the enforceability thereof may be limited by bankrupt
Appears in 1 contract
Sources: Mortgage Loan Sale and Assignment Agreement (Amortizing Residential Collateral Trust, Series 2004-1)
Representations and Warranties of the Seller. (a) The Seller hereby represents makes the following representations and warrants warranties on which (i) the Issuer is deemed to have relied in acquiring the Depositor that Contracts and (ii) the Insurer is deemed to have relied in issuing the Policy; provided such representations and warranties speak as of the execution and delivery of this Agreement and as of the Closing DateDate with respect to Sections 2.02(a), (b) and (c), and as of each Prefunding Transfer Date (with respect to the Prefunded Contracts conveyed to the Trust on such date) with respect to Sections 2.02(a) and (d), but shall survive the sale, transfer and assignment of the Contracts to the Issuer and the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) As to the Seller:
(i) The Seller is duly organized and validly existing as a corporation duly organized, validly organized and existing and in good standing under the laws governing its creation and existence and has full corporate of the State of Delaware, with power and authority to own its property, properties and to carry on conduct its business as presently conductedand had at all relevant times, and has, power, authority, and legal right to enter into originate or acquire and perform its obligations under this Agreement and own the Assignment and Assumption Agreement;Contracts.
(ii) The execution Seller is duly qualified to do business as a foreign corporation in good standing, and delivery shall have obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualifications.
(iii) The Seller has the power and authority to execute and deliver this Agreement and to carry out its terms; the Seller has full power and authority to sell and assign the property to be sold and assigned to and deposited with the Issuer and has duly authorized such sale and assignment to the Issuer by all necessary corporate action; and the execution, delivery, and performance of this Agreement has been duly authorized by the Seller by all necessary corporate action.
(iv) This Agreement constitutes (A) a valid sale, transfer, and assignment of the Contracts, enforceable against creditors of and purchasers from the Seller and (B) a legal, valid, and binding obligation of the Seller enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or at law.
(v) The consummation of the transactions contemplated by this Agreement and the Assignment and Assumption Agreement have been duly authorized by all necessary corporate action on the part fulfillment of the Seller; neither terms hereof shall not conflict with, result in any breach of any of the execution terms and delivery of this Agreement or the Assignment and Assumption Agreementprovisions of, nor the consummation of the transactions herein or therein contemplated, nor compliance with the provisions hereof or thereof, will conflict constitute (with or result in a breach of, without notice or constitute lapse of time) a default under, any of the provisions of any law, governmental rule, regulation, judgment, decree or order binding on the Seller or its properties or the certificate of incorporation or bylaws of the Seller;
, or any indenture, agreement, or other instrument to which the Seller is a party or by which it shall be bound; nor result in the creation or imposition of any Lien upon any of the properties of the Seller pursuant to the terms of any such indenture, agreement, or other instrument (iii) The executionother than pursuant to the Basic Documents to which the Seller is a party); nor violate any law or any order, delivery and performance by rule, or regulation applicable to the Seller of this Agreement and the Assignment and Assumption Agreement and the consummation of the transactions contemplated hereby and thereby do not require the consent any court or approval of, the giving of notice to, the registration with, or the taking of any other action in respect offederal or state regulatory body, any stateadministrative agency, federal or other governmental authority instrumentality having jurisdiction over the Seller or its properties.
(vi) To the Seller's best knowledge after due inquiry, there are no proceedings or investigations pending, or threatened, before any court, regulatory body, administrative agency, except such as has been obtained, given, effected or taken prior to the date hereof;
(iv) Each of this Agreement and the Assignment and Assumption Agreement has been duly executed and delivered by other governmental instrumentality having jurisdiction over the Seller and, assuming due authorization, execution and delivery by or its properties: (A) asserting the Bank, in the case of the Assignment and Assumption Agreement, and the Depositor, in the case invalidity of this Agreement, constitutes a valid and binding obligation of the Seller enforceable against it in accordance with its respective termsNotes, except as such enforceability may be subject to (A) applicable bankruptcy and insolvency laws and other similar laws affecting the enforcement of the rights of creditors generally and (B) general principles of equity regardless of whether such enforcement is considered in a proceeding in equity or at law; and
(v) There are no actions, suits or proceedings pending or, seeking to prevent the knowledge issuance of the Seller, threatened Notes or likely to be asserted against or affecting the Seller, before or by any court, administrative agency, arbitrator or governmental body (A) with respect to consummation of any of the transactions contemplated by this Agreement Agreement, (C) seeking any determination or the Assignment and Assumption Agreement or (B) with respect to any other matter which in the judgment of the Seller will be determined adversely to the Seller and will if determined adversely to the Seller ruling that might materially and adversely affect it or the performance by the Seller of its business, assets, operations or condition, financial or otherwiseobligations under, or the validity or enforceability of, this Agreement, the Notes, or (D) naming the Seller which might adversely affect its ability to perform its obligations under this Agreement or the Assignment and Assumption Agreementfederal income tax attributes of the Notes.
(b) The representations and warranties of As to each Transferor with respect to the Transferred Mortgage Loans in the applicable Transfer Agreement were made Funded Contract (except as of the date of such Transfer Agreement. To the extent that any fact, condition or event with respect to a Transferred Mortgage Loan constitutes a breach of both (i) a representation or warranty of a Transferor under the applicable Transfer Agreement and (ii) a representation or warranty of the Seller under this Agreement, the sole right or remedy of the Depositor with respect to a breach by the Seller of such representation and warranty (other than a breach by the Seller of the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) shall be the right to enforce the obligations of such Transferor under any applicable representation or warranty made by it. The representations made by the Seller pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx) shall be direct obligations of the Seller. The Depositor acknowledges and agrees that the representations and warranties of the Seller in this Section 1.04(b) (other than the representations and warranties made pursuant to Sections 1.04(b)(xii), 1.04(b)(xvii), 1.04(b)(xviii), 1.04(b)(xix) and 1.04(b)(xx)) are noted below as being applicable only to facts, conditions either Precomputed Contracts or events that do not constitute a breach of any representation or warranty made by the related Transferor in the applicable Transfer Agreement. The Seller shall have no obligation or liability with respect to any breach of a representation or warranty made by it with respect to the Transferred Mortgage Loans if the fact, condition or event constituting such breach also constitutes a breach of a representation or warranty made by the related Transferor in such Transfer Agreement, without regard to whether the related Transferor fulfills its contractual obligations in respect of such representation or warranty; provided, however, that if the related Transferor fulfills its obligations under the provisions of such Transfer Agreement by substituting for the affected Mortgage Loan a mortgage loan which is not a Qualifying Substitute Mortgage Loan, the Seller shall, in exchange for such substitute mortgage loan, provide the Depositor (a) with the applicable Purchase Price for the affected Mortgage Loan or (b) within the two-year period following the Closing Date, with a Qualified Substitute Mortgage Loan for such affected Transferred Mortgage Loan. Subject to the foregoing, the Seller represents and warrants upon delivery of the Transferred Mortgage Loans to the Depositor hereunder on the Closing Date, as to each, that:Simple Interest Contracts):
(i) The information pertaining to such Contract set forth with respect to in the Transferred Mortgage Loans on the Mortgage Loan related Schedule provides an accurate listing of the Transferred Mortgage Loans, and the information with respect to each Transferred Mortgage Loan on the Mortgage Loan Schedule is Contracts was true and correct in all material respects at the date or dates respecting which such information is given;Closing Date.
(ii) There are no defaults As of the Closing Date, such Contract was secured by a valid and enforceable first priority security interest in favor of Onyx in the related Financed Vehicle, and such security interest has been duly perfected and is prior to all other liens upon and security interests in such Financed Vehicle which now exist or may hereafter arise or be created (other than delinquency except, as to priority, for any lien for unpaid taxes or unpaid storage or repair charges which may arise after the Closing Date in payment) in complying accordance with the terms of any MortgageUCC); such security interest is assignable, and had been assigned by Onyx to the Seller pursuant to the Purchase Agreement, and, as of the Closing Date, has no notice as been assigned by the Seller to any taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing but which have not been paid;the Issuer pursuant to Section 2.01(a) hereof.
(iiiA) Except If the related Contract was originated in a state in which notation of a security interest on the Title Document (or in the case of Cooperative Loanselectronic title records) is required or permitted to perfect the security interest in the related Financed Vehicle, the Title Document or the electronic title records for such Financed Vehicle shows, or, if anya new or replacement Title Document is being applied for with respect to such Financed Vehicle, each Mortgage requires all buildings or other improvements on the Title Document will be received within 180 days of the Closing Date and will show, Onyx named as the original secured party under the related Mortgaged Property to be insured by a generally acceptable insurer against loss by fire, hazards of extended coverage and such other hazards Contract as are customary in the area where the related Mortgaged Property is located pursuant to insurance policies conforming to the requirements of the guidelines of FNMA or FHLMC. If upon origination of a Transferred Mortgage Loan, the Mortgaged Property was in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards (and such flood insurance has been made available) a flood insurance policy meeting the requirements of the current guidelines of the Federal Flood Insurance Administration is in effect which policy conforms to the requirements of the current guidelines of the Federal Flood Insurance Administration. Each Mortgage obligates the related 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 a first priority security interest in such insurance at such Mortgagor’s cost and expenseFinanced Vehicle, and (B) if the related Contract was originated in a state in which the filing of a financing statement under the UCC is required to seek reimbursement therefor perfect a security interest in motor vehicles, such filings or recordings have been duly made and show Onyx named as the original secured party under the related Contract, and in either case, the Indenture Trustee on behalf of the Noteholders and the Insurer has the same rights as such secured party has or would have (if such secured party were still the owner of such Contract) against all parties claiming an interest in such Financed Vehicle. With respect to each Contract for which the Title Document has not yet been returned from the Mortgagor. Where required by state law Registrar of Titles (or regulationevidenced in the electronic title records), each Mortgagor Onyx has written evidence that such Title Documents showing Onyx as first lienholder have 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 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 Depositor upon the consummation of the transactions contemplated by this Agreement;applied for.
(iv) Each Mortgage has not been satisfied, cancelled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien As of the MortgageClosing Date, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, subordination or rescission;
(v) Each Mortgage evidences a valid, subsisting, enforceable and perfected first lien on the related Mortgaged Property (including all improvements on the Mortgaged Property). The lien of the Mortgage is subject only to: (1) liens of current real property taxes and assessments not yet due and payable and, if the related Mortgaged Property is a condominium unit, any lien for common charges permitted by statute, (2) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage acceptable to mortgage lending institutions in the area in which the related Mortgaged Property is located and specifically referred to in the lender’s Title Insurance Policy or attorney’s opinion of title and abstract of title delivered to the originator of the applicable Transferred Mortgage Loan, and (3) such other matters to which like properties are commonly subject which do not, individually or in the aggregate, materially interfere with the benefits of the security intended to be provided by the Mortgage. Any security agreement, chattel mortgage or equivalent document related to, and delivered to the Trustee in connection with, a Transferred Mortgage Loan establishes a valid, subsisting and enforceable first lien on the property described therein and the Depositor has full right to sell and assign the same to the Trustee;
(vi) Immediately prior to the transfer and assignment of the Transferred Mortgage Loans to the Depositor, the Seller was the sole owner of record and holder of each Transferred Mortgage Loan, and the Seller had good and marketable title thereto, to and has full right was the sole owner of each such Contract to transfer and sell each Transferred Mortgage Loan be transferred to the Depositor Issuer pursuant to Section 2.01 free of liens, claims, encumbrances and clearrights of others and, except as described upon transfer of such Contract to the Issuer pursuant to Section 2.01, the Issuer will have good and marketable title to, will have a first priority perfected security interest in paragraph and will be the sole owner of such Contract free of liens, encumbrances and rights of others.
(v) above, 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 Transferred Mortgage Loan pursuant to this Agreement;
(vii) Each Transferred Mortgage Loan other than any Cooperative Loan is covered by either (i) an attorney’s opinion of title and abstract of title the form and substance of which is generally acceptable to mortgage lending institutions originating mortgage loans in the locality where the related Mortgaged Property is located or (ii) an ALTA mortgagee Title Insurance Policy or other generally acceptable form of policy of insurance, issued by a title insurer qualified to do business in the jurisdiction where the Mortgaged Property is located, insuring the originator of the Transferred Mortgage Loan, and its successors and assigns, as to the first priority lien of the Mortgage in the original principal amount of the Transferred Mortgage Loan (subject only to the exceptions described in paragraph (v) above). If the Mortgaged Property is a condominium unit located in a state in which a title insurer will generally issue an endorsement, then the related Title Insurance Policy contains an endorsement insuring the validity of the creation of the condominium form of ownership with respect to the project in which such unit is located. With respect to any Title Insurance Policy, the originator is the sole insured of such mortgagee Title Insurance Policy, such mortgagee Title Insurance Policy is in full force and effect and will inure to the benefit of the Depositor upon the consummation of the transactions contemplated by this Agreement, no claims have been made under such mortgagee Title Insurance Policy and no prior holder As of the related MortgageCut-Off Date, including the Sellermost recent scheduled payment due on each such Contract had been made or was not delinquent more than 30 days and, has done, by act or omission, anything that would impair the coverage of such mortgagee Title Insurance Policy;
(viii) To to the best of the Seller’s 's knowledge, no foreclosure action is being threatened or commenced with respect to any Transferred Mortgage Loanall payments on the Contract were made by the related Obligors.
(ixvi) There As of the Closing Date, there is no proceeding pending for the total or partial condemnation of any Mortgaged Property (or, in the case of any Cooperative Loan, lien against the related cooperative unitFinanced Vehicle for delinquent taxes.
(vii) and each such property As of the Closing Date, there is undamaged by wasteno right of rescission, fireoffset, earthquake defense or earth movement, windstorm, flood, tornado or other casualty, so as counterclaim to have a material adverse effect on the value obligation of the related Mortgaged Property as security for Obligor(s) to pay the related Transferred Mortgage Loan unpaid principal or interest due under such Contract; the operation of the terms of such Contract or the use for which exercise of any right thereunder will not render such Contract unenforceable in whole or in part or subject such Contract to any right of rescission, offset, defense or counterclaim, and the premises were intended;Seller has no knowledge that such right of rescission, offset, defense or counterclaim has been asserted or threatened.
(xviii) There As of the Closing Date, to the best of the Seller's knowledge, there are no mechanics’ or similar liens or claims which have been filed filed, including liens for work, labor labor, material, storage or material (and no rights are outstanding that under the law could give rise to such liens) unpaid taxes affecting the related Mortgaged Property Financed Vehicle which are or may be liens become a lien prior to, or equal or coordinate with, the lien security interest granted by such Contract.
(ix) Such Contract, and the sale of the related Mortgage;
(xi) Each Transferred Mortgage Loan was originated by a savings and loan associationFinanced Vehicle sold thereunder, savings bankcomplied, commercial bank, credit union, 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;
(xii) Each Transferred Mortgage Loan at the time it was made complied made, in all material respects with all applicable localfederal, statestate and local laws (and regulations thereunder), including without limitation usury, equal credit opportunity, fair credit reporting, truth-in-lending or other similar laws, the Federal Trade Commission Act, the Fair Debt Collection Practices Act, the Fair Credit Billing Act, the Mag▇▇▇▇▇- ▇▇▇▇ ▇▇rranty Act, the Federal Reserve Board's Regulations B and Z, the Soldiers' and Sailors' Civil Relief Act of 1940, state adoptions of the National Consumer Act and the Uniform Consumer Credit Code, and federal other applicable state laws regulating retail installment sales contracts and loans in general and motor vehicle retail installment contracts and loans in particular; and the consummation of the transactions herein contemplated, including, but without limitation, the transfer of ownership of such Contracts to the Issuer and the receipt of interest by the Noteholders, will not violate any applicable federal, state or local law.
(x) Such Contract is the legal, valid and binding obligation of the related Obligor(s) thereunder and is enforceable in accordance with its terms, except only as such enforcement may be limited toby bankruptcy, insolvency or similar laws affecting the enforcement of creditors' rights generally; each party to such Contract had full legal capacity to execute and deliver such Contract and all applicable predatory other documents related thereto and abusive lending laws;to grant the security interest purported to be granted thereby; the terms of such Contract have not been waived, amended or modified in any respect, except by instruments that are part of the related Contract Documents, and no such waiver, amendment or modification has caused such Contract to fail to meet all of the representations, warranties and conditions, set forth herein with respect thereto.
(xi) Such Contract contains customary and enforceable provisions such as to render the rights and remedies of the holder or assignee thereof adequate for the practical realization against the collateral of the benefits of the security, subject, as to enforceability, to bankruptcy, insolvency, reorganization or similar laws affecting the enforcement of creditors' rights generally.
(xii) As of the Closing Date, (a) there was no default, breach, violation or event permitting acceleration existing under such Contract (except payment delinquencies permitted by subparagraph (v) above), (b) there does not exist any continuing condition that with notice or lapse of time would constitute a default, breach, violation or event permitting acceleration existing under such Contract, and (c) the Seller has not waived any such default, breach, violation or event permitting acceleration except payment delinquencies permitted by subparagraph (v) above.
(xiii) As of the Closing Date, Date each Transferred Mortgage Loan is a “qualified mortgage” within related Financed Vehicle will be covered by the meaning Blanket Insurance Policy; each of Section 860G Onyx and the Seller shall at all times comply with all of the Code and Treas. Reg. §1.860G-2 (determined without regard provisions of such insurance policy applicable to Treas. Reg. §1.860G-2(f) or any similar rule that provides that a defective obligation it so long as such insurance policy is a qualified mortgage for a temporary period);in effect.
(xiv) As of the Closing Date, other than with respect to Retained Interest, no Transferred Mortgage Loan provides (a) such Contract will require that the related Obligor(s) obtain and maintain in effect for interest other than at either the related Financed Vehicle a comprehensive and collision insurance policy (i) a single fixed rate in effect throughout an amount at least equal to the term lesser of (x) its maximum insurable value or (y) the Transferred Mortgage Loan or principal amount due from the related Obligor(s) under such Contract, (ii) naming Onyx as a loss payee and (iii) insuring against loss and damage due to fire, theft, transportation, collision and other risks generally covered by comprehensive and collision coverage and (b) the Servicer shall have put in place a vendor's single “variable rate” (within the meaning of Treas. Reg. §1.860G-1(a)(3)) in effect throughout the term interest insurance policy providing coverage upon repossession of the Transferred Mortgage Loan;related Financed Vehicle in an amount equal to the lesser of the actual cash value of such Financed Vehicle, the cost of repair or replacement for such Financed Vehicle and the unpaid balance of the related Contract. Each of Onyx and the Seller shall at all times comply with all of the provisions of such insurance policies applicable to it.
(xv) Such Contract was acquired by Onyx from a Dealer with which it ordinarily does business, and no adverse selection procedures have been utilized in selecting such Contract from all other similar contracts purchased or originated by Onyx or any subsidiary.
(xvi) Payments under such Contract have been applied in accordance with the Rule of 78's Method, the Actuarial Method or the Simple Interest Method, as provided in the applicable Contract, and are due monthly in substantially equal amounts through its Maturity Date sufficient to fully amortize the principal balance of such Contract by its Maturity Date.
(xvii) There is only one original of such Contract and such original, together with all other related Contract Documents, is being held by the Custodian.
(xviii) As of the Closing Date, no Transferred Mortgage Loan the Servicer has clearly marked its electronic records to indicate that such Contract is owned by the subject of pending or final foreclosure proceedings;Issuer.
(xvixix) At the date of origination of the Contract, the original principal balance of such Contract was not greater than the purchase price to the related Obligor(s) (including taxes, warranties, licenses and related charges) of the related Financed Vehicle.
(xx) As of the Closing related Cut-Off Date, based on delinquencies in payment on the Transferred Mortgage Loans, the Seller would has not initiate foreclosure proceedings received notice that any Obligor under such Contract has filed for bankruptcy.
(xxi) Such Contract had an original maturity of not more than 72 months and as of the related Cut-Off Date, such Contract has a remaining maturity of 72 months or less;
(xxii) The first scheduled monthly payment for at least 80% of the Initial Contracts (by Outstanding Principal Balance) is due on or before July 31, 2001, and the first scheduled monthly payment for at least 90% of the Subsequent Contracts (by Outstanding Principal Balance) is due on or before August 31, 2001.
(xxiii) As of the related Cut-Off Date, such Contract has a remaining principal balance of at least $500.
(xxiv) As of the related Cut-Off Date, such Contract is secured by a Financed Vehicle that has not been repossessed without reinstatement.
(xxv) The related Obligor(s) were located in Alabama, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Jersey, North Carolina, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, Washington or West Virginia on the date of origination of such Contract.
(xxvi) The Obligor on such Contract is either (a) a natural person residing in any state or (b) another entity, provided that a natural person is a joint and several Obligor with respect to any Transferred Mortgage Loan prior to the next scheduled payment date on such Transferred Mortgage Loan;Contract.
(xviic) No Transferred Mortgage Loan As to all of the Funded Contracts:
(i) The aggregate Outstanding Principal Balance payable by Obligors of the Funded Contracts as of the related Cut-Off Date plus the initial deposit into the Prefunding Account equals the Original Pool Balance.
(ii) As of the related Cut-Off Date, approximately 22.36% of the Outstanding Principal Balance of all Funded Contracts is a “highattributable to loans involving new Financed Vehicles, and approximately 77.64% of the Outstanding Principal Balance of all Funded Contracts is attributable to loans involving used Financed Vehicles.
(iii) As of the related Cut-cost,” “high-cost home,” “covered,” “high-risk home” Off Date, the aggregate Outstanding Principal Balance of all Funded Contracts originated in any single state, other than California, did not equal or “predatory” loan under any exceed 10%.
(d) As to each Prefunded Contract (except as noted below as being applicable federalonly to either Precomputed Contracts or Simple Interest Contracts), state or local predatory or abusive lending law as of the related Prefunding Transfer Date (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); no Transferred Mortgage Loan originated on or after November 27, 2003 except as otherwise noted):
(i) The information pertaining to such Contract set forth in the related Transfer Certificate is a “High-Cost Home Loan” subject to the New Jersey Home Ownership Security Act of 2003 (N.J.S.A. 46:10B-22 et seq.); no Transferred Mortgage Loan is a “High-Cost Home Loan” subject to the New Mexico Home Loan Protection Act (N.M.true and cor
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Sources: Sale and Servicing Agreement (Onyx Acceptance Financial Corp)