Representations and Warranties of the Loan Originator. The Loan Originator hereby represents and warrants to the other parties hereto and the Securityholders that as of the Closing Date and as of each Transfer Date: (a) The Loan Originator is a limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (i) is duly qualified, in good standing and licensed to carry on its business in each state where any Loan Collateral related to a Loan sold by it is located to the extent necessary to ensure the enforceability of each Loan and the servicing of the Loan in accordance with Accepted Servicing Practices and (ii) is in compliance with the laws of any such jurisdiction, in both cases, to the extent necessary to ensure the enforceability of such Loan in accordance with the terms thereof and had at all relevant times, full power to originate such Loan, to own its property, to carry on its business as currently conducted and to enter into and perform its obligations under each Basic Document to which it is a party; (b) The execution and delivery by The Loan Originator of each Basic Document to which it is a party and its performance of and compliance with the terms thereof will not violate The Loan Originator’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which The Loan Originator is a party or which may be applicable to The Loan Originator or any of its assets in each case that is likely to affect materially and adversely its ability to carry out the transactions contemplated hereby; (c) The Loan Originator has the full power and authority to enter into and consummate all transactions contemplated by the Basic Documents to be consummated by it, has duly authorized the execution, delivery and performance of each Basic Document to which it is a party and has duly executed and delivered each Basic Document to which it is a party; each Basic Document to which it is a party, assuming due authorization, execution and delivery by each of the other parties thereto, constitutes a valid, legal and binding obligation of The Loan Originator, enforceable against it in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law); (d) The Loan Originator is not in violation of, and the execution and delivery of each Basic Document to which it is a party by the Loan Originator and its performance and compliance with the terms of each Basic Document to which it is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction, which violation would materially and adversely affect the financial condition, business or operations of the Loan Originator or its properties or materially and adversely affect the performance of its duties under any Basic Document to which it is a party; (e) There are no actions or proceedings against, or investigations of, the Loan Originator currently pending with regard to which the Loan Originator has received service of process and no action or proceeding against, or investigation of, the Loan Originator is, to the Loan Originator’s knowledge, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) would prohibit its entering into any Basic Document to which it is a party or render the Securities invalid, (B) seeks to prevent the issuance of the Securities or the consummation of any of the transactions contemplated by any Basic Document to which it is a party or (C) would prohibit or materially and adversely affect the sale of the Loans to the Depositor, the performance by the Loan Originator of its obligations under, or the validity or enforceability of, any Basic Document to which it is a party or the Securities; (f) No consent, approval, authorization or order of any court or governmental agency or body is required for: (1) the execution, delivery and performance by the Loan Originator of, or compliance by the Loan Originator with, any Basic Document to which it is a party, (2) the sale and contribution of the Eligible Loans to the Depositor, or (3) the consummation of the transactions required of it by any Basic Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Loans to the Issuer, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization, qualification, registration, filing or notice is unlikely to have a material adverse effect on its performance hereunder; (g) Immediately prior to the sale of any Loans to the Depositor, the Loan Originator had good and valid title to the Loans sold by it on such date free and clear of all Liens other than Permitted Liens; (h) The Loan Originator is solvent, is able to pay its debts as they become due and has capital sufficient to carry on its business and its obligations under each Basic Document to which it is a party; it will not be rendered insolvent by the execution and delivery of this Agreement or by the performance of its obligations under each Basic Document to which it is a party; no petition of bankruptcy (or similar insolvency proceeding) has been filed by or against the Loan Originator prior to the date hereof; (i) The Loan Originator has transferred the Loans transferred by it on or prior to such Transfer Date without any intent to hinder, delay or defraud any of its creditors; (j) The Loan Originator has received fair consideration and reasonably equivalent value in exchange for the Loans sold and contributed by it on such Transfer Date to the Depositor; (k) The Loan Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, commission or compensation in connection with the transaction contemplated by this Agreement; (l) The Loan Originator’s principal place of business and chief executive offices are located at 4000 Xxxxxxx Xxxxxx, Chevy Chase, Maryland, Maryland 20815 or at such other address as shall be designated by such party in a written notice to the other parties hereto; (m) The Loan Originator acknowledges and agrees that the Servicing Compensation represents reasonable compensation for the performance of its services hereunder and that the entire Servicing Compensation shall be treated by the Loan Originator, for accounting purposes, as compensation for the servicing and administration of the Loans pursuant to this Agreement; and (n) The Loan Originator is in compliance with the financial covenants set forth in Section 7.01.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Representations and Warranties of the Loan Originator. The Loan Originator hereby represents and warrants to the other parties hereto and the Securityholders that as of the Closing Date and as of each Transfer Date:
(a) The Loan Originator is a limited liability company corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (i) is duly qualified, in good standing and licensed to carry on its business in each state where any Loan Collateral Mortgaged Property related to a Loan sold by it is located to the extent necessary to ensure the enforceability of each Loan and the servicing of the Loan in accordance with Accepted Servicing Practices and (ii) is in compliance with the laws of any such jurisdiction, in both cases, to the extent necessary to ensure the enforceability of such Loan Loans in accordance with the terms thereof and had at all relevant times, full corporate power to originate such LoanLoans, to own its property, to carry on its business as currently conducted and to enter into and perform its obligations under each Basic Document to which it is a party;
(b) The execution and delivery by The the Loan Originator of each Basic Document to which it is a party and its performance of and compliance with the terms thereof will not violate The the Loan Originator’s organizational documents 's articles of organization or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which The the Loan Originator is a party or which may be applicable to The the Loan Originator or any of its assets in each case that is likely to affect materially and adversely its ability to carry out the transactions contemplated herebyassets;
(c) The Loan Originator has the full power and authority to enter into and consummate all transactions contemplated by the Basic Documents to be consummated by it, has duly authorized the execution, delivery and performance of each Basic Document to which it is a party and has duly executed and delivered each Basic Document to which it is a party; each Basic Document to which it is a party, assuming due authorization, execution and delivery by each of the other parties thereto, constitutes a valid, legal and binding obligation of The the Loan Originator, enforceable against it in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) The Loan Originator is not in violation of, and the execution and delivery of each Basic Document to which it is a party by the Loan Originator and its performance and compliance with the terms of each Basic Document to which it is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction, which violation would materially and adversely affect the condition (financial condition, business or otherwise) or operations of the Loan Originator or its properties or materially and adversely affect the performance of its duties under any Basic Document to which it is a party;
(e) There are no actions or proceedings against, or investigations of, the Loan Originator currently pending with regard to which the Loan Originator has received service of process and no action or proceeding against, or investigation of, the Loan Originator is, to the knowledge of the Loan Originator’s knowledge, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) if determined adversely to the Loan Originator, would prohibit its entering into any Basic Document to which it is a party or render the Securities invalid, (B) seeks seek to prevent the issuance of the Securities or the consummation of any of the transactions contemplated by any Basic Document to which it is a party or (C) if determined adversely to the Loan Originator, would reasonably be expected to prohibit or materially and adversely affect the sale of the Loans or Residual Securities to the Depositor, the performance by the Loan Originator of its obligations under, or the validity or enforceability of, any Basic Document to which it is a party or the Securities, provided, however, that for purposes of calculating whether the Loan Seller satisfies the Financial Covenants, such action, proceeding or investigation shall not be taken into account unless there is a reasonable possibility of an adverse determination of such action, proceeding or investigation;
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for: (1) the execution, delivery and performance by the Loan Originator of, or compliance by the Loan Originator with, any Basic Document to which it is a party, (2) the issuance of the Securities, (3) the sale and contribution of the Eligible Loans to or the Depositorsale of the Residual Securities, or (34) the consummation of the transactions required of it by any Basic Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Loans to the Issuer, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization, qualification, registration, filing or notice is unlikely to have a material adverse effect on its performance hereunder;
(g) Immediately prior to the sale of any Loans Loan or Residual Security to the Depositor, the Loan Originator had good and valid title to the Loans such Loan or Residual Security sold by it on such date free and clear without notice of all Liens other than Permitted Liensany adverse claim;
(h) The information, reports, financial statements, exhibits and schedules furnished in writing by or on behalf of the Loan Originator to the Initial Noteholder in connection with the negotiation, preparation or delivery of the Basic Documents to which it is a party or delivered pursuant thereto, when taken as a whole, do not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. All written information furnished after the date hereof by or on behalf of the Loan Originator to the Initial Noteholder in connection with the Basic Documents to which it is a party and the transactions contemplated thereby will be true, complete and accurate in every material respect, or (in the case of projections) based on reasonable estimates, on the date as of which such information is stated or certified.
(i) The Loan Originator is solvent, is able to pay its debts as they become due and has capital sufficient to carry on its business and its obligations under each Basic Document to which it is a party; it will not be rendered insolvent by the execution and delivery of this Agreement or by the performance of its obligations under each Basic Document to which it is a party; no petition of bankruptcy (or similar insolvency proceeding) has been filed by or against the Loan Originator prior to the date hereof;
(ij) The Loan Originator has transferred the Loans or Residual Securities transferred by it on or prior to such Transfer Date without any intent to hinder, delay or defraud any of its creditors;
(jk) The Loan Originator has received fair consideration and reasonably equivalent value in exchange for the Loans and Residual Securities sold and contributed by it on such Transfer Date to the Depositor;
(kl) The Loan Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, commission or compensation in connection with the transaction contemplated by this Agreement;
(lm) The Loan Originator is in compliance with each of its financial covenants set forth in Section 7.02; and
(n) The Loan Originator’s 's principal place of business and chief executive offices are located at 4000 Xxxxxxx XxxxxxIrvine, Chevy Chase, Maryland, Maryland 20815 California or at such other address as shall be designated by such party in a written notice to the other parties hereto;
(m) The Loan Originator acknowledges . It is understood and agrees agreed that the Servicing Compensation represents reasonable compensation for representations and warranties set forth in this Section 3.02 shall survive delivery of the performance respective Custodial Loan Files to the Custodian (as the agent of its services hereunder the Indenture Trustee) and that shall inure to the entire Servicing Compensation shall be treated benefit of the Securityholders, the Depositor, the Servicer, the Indenture Trustee, the Owner Trustee and the Issuer. Upon discovery by the Loan Originator, for accounting purposesthe Depositor, as compensation for the servicing and administration Servicer, the Indenture Trustee or the Trust of a breach of any of the Loans pursuant to this Agreement; and
(n) The Loan Originator is in compliance with foregoing representations and warranties that materially and adversely affects the financial covenants set forth in Section 7.01.value of
Appears in 2 contracts
Samples: Sale and Servicing Agreement (H&r Block Inc), Sale and Servicing Agreement (H&r Block Inc)
Representations and Warranties of the Loan Originator. The Loan Originator hereby represents and warrants to the other parties hereto and the Securityholders that as of the Closing Date and as of each Transfer Date:
(a) The Loan Originator is a limited liability company corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (i) is duly qualified, in good standing and licensed to carry on its business in each state where any Loan Collateral Mortgaged Property related to a Loan sold by it is located to the extent necessary to ensure the enforceability of each Loan and the servicing of the Loan in accordance with Accepted Servicing Practices and (ii) is in compliance with the laws of any such jurisdiction, in both cases, to the extent necessary to ensure the enforceability of such Loan Loans in accordance with the terms thereof and had at all relevant times, full corporate power to originate such LoanLoans, to own its property, to carry on its business as currently conducted and to enter into and perform its obligations under each Basic Document to which it is a party;
(b) The execution and delivery by The the Loan Originator of each Basic Document to which it is a party and its performance of and compliance with the terms thereof will not violate The the Loan Originator’s organizational documents 's articles of organization or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which The the Loan Originator is a party or which may be applicable to The the Loan Originator or any of its assets in each case that is likely to affect materially and adversely its ability to carry out the transactions contemplated herebyassets;
(c) The Loan Originator has the full power and authority to enter into and consummate all transactions contemplated by the Basic Documents to be consummated by it, has duly authorized the execution, delivery and performance of each Basic Document to which it is a party and has duly executed and delivered each Basic Document to which it is a party; each Basic Document to which it is a party, assuming due authorization, execution and delivery by each of the other parties thereto, constitutes a valid, legal and binding obligation of The the Loan Originator, enforceable against it in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) The Loan Originator is not in violation of, and the execution and delivery of each Basic Document to which it is a party by the Loan Originator and its performance and compliance with the terms of each Basic Document to which it is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction, which violation would materially and adversely affect the condition (financial condition, business or otherwise) or operations of the Loan Originator or its properties or materially and adversely affect the performance of its duties under any Basic Document to which it is a party;
(e) There are no actions or proceedings against, or investigations of, the Loan Originator currently pending with regard to which the Loan Originator has received service of process and no action or proceeding against, or investigation of, the Loan Originator is, to the knowledge of the Loan Originator’s knowledge, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) if determined adversely to the Loan Originator, would prohibit its entering into any Basic Document to which it is a party or render the Securities invalid, (B) seeks seek to prevent the issuance of the Securities or the consummation of any of the transactions contemplated by any Basic Document to which it is a party or (C) if determined adversely to the Loan Originator, would prohibit have a reasonable possibility of prohibiting or preventing or materially and adversely affect affecting the sale of the Loans to the Depositor, the performance by the Loan Originator of its obligations under, or the validity or enforceability of, any Basic Document to which it is a party or the Securities; provided, however, that insofar as this representation relates to the Loan Originator's satisfaction of its financial covenants, there is also a reasonable possibility of an adverse determination of such action, proceeding or investigation having such effect;
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for: (1) the execution, delivery and performance by the Loan Originator of, or compliance by the Loan Originator with, any Basic Document to which it is a party, (2) the issuance of the Securities, (3) the sale and contribution of the Eligible Loans to the DepositorLoans, or (34) the consummation of the transactions required of it by any Basic Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Loans to the Issuer, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization, qualification, registration, filing or notice is unlikely to have a material adverse effect on its performance hereunder;
(g) Immediately prior to the sale of any Loans Loan to the Depositor, the Loan Originator had good and valid title to the Loans sold by it on such date free and clear without notice of all Liens other than Permitted Liensany adverse claim;
(h) The information, reports, financial statements, exhibits and schedules furnished in writing by or on behalf of the Loan Originator to the Purchaser in connection with the negotiation, preparation or delivery of the Basic Documents to which it is a party or delivered pursuant thereto, when taken as a whole, do not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. All written information furnished after the date hereof by or on behalf of the Loan Originator to the Noteholder Agent or any Noteholder in connection with the Basic Documents to which it is a party and the transactions contemplated thereby will be true, complete and accurate in every material respect, or (in the case of projections) based on reasonable estimates, on the date as of which such information is stated or certified.
(i) The Loan Originator is solvent, is able to pay its debts as they become due and has capital sufficient to carry on its business and its obligations under each Basic Document to which it is a party; it will not be rendered insolvent by the execution and delivery of this Agreement or by the performance of its obligations under each Basic Document to which it is a party; no petition of bankruptcy (or similar insolvency proceeding) has been filed by or against the Loan Originator prior to the date hereof;
(ij) The Loan Originator has transferred the Loans transferred by it on or prior to such Transfer Date without any intent to hinder, delay or defraud any of its creditors;
(jk) The Loan Originator has received fair consideration and reasonably equivalent value in exchange for the Loans sold and contributed by it on such Transfer Date to the Depositor;
(kl) The Loan Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, commission or compensation in connection with the transaction contemplated by this Agreement;
(lm) The Loan Originator is in compliance with each of its financial covenants set forth in Section 7.02; and
(n) The Loan Originator’s 's principal place of business and chief executive offices are located at 4000 Xxxxxxx XxxxxxIrvine, Chevy Chase, Maryland, Maryland 20815 California or at such other address as shall be designated by such party in a written notice to the other parties hereto;
(m) The Loan Originator acknowledges and agrees that the Servicing Compensation represents reasonable compensation for the performance of its services hereunder and that the entire Servicing Compensation shall be treated by the Loan Originator, for accounting purposes, as compensation for the servicing and administration of the Loans pursuant to this Agreement; and
(n) The Loan Originator is in compliance with the financial covenants set forth in Section 7.01.
Appears in 1 contract
Representations and Warranties of the Loan Originator. The Loan Originator hereby represents and warrants to the other parties hereto and the Securityholders that as of the Closing Date and as of each Transfer Date:
(a) The Loan Originator is a limited liability company corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (i) is duly qualified, in good standing and licensed to carry on its business in each state where any Loan Collateral Mortgaged Property related to a Loan sold by it is located to the extent necessary to ensure the enforceability of each Loan and the servicing of the Loan in accordance with Accepted Servicing Practices and (ii) is in compliance with the laws of any such jurisdiction, in both cases, to the extent necessary to ensure the enforceability of such Loan Loans in accordance with the terms thereof and had at all relevant times, full corporate power to originate such LoanLoans, to own its property, to carry on its business as currently conducted and to enter into and perform its obligations under each Basic Document to which it is a party;
(b) The execution and delivery by The the Loan Originator of each Basic Document to which it is a party and its performance of and compliance with the terms thereof will not violate The the Loan Originator’s organizational documents articles of organization or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which The the Loan Originator is a party or which may be applicable to The the Loan Originator or any of its assets in each case that is likely to affect materially and adversely its ability to carry out the transactions contemplated herebyassets;
(c) The Loan Originator has the full power and authority to enter into and consummate all transactions contemplated by the Basic Documents to be consummated by it, has duly authorized the execution, delivery and performance of each Basic Document to which it is a party and has duly executed and delivered each Basic Document to which it is a party; each Basic Document to which it is a party, assuming due authorization, execution and delivery by each of the other parties thereto, constitutes a valid, legal and binding obligation of The the Loan Originator, enforceable against it in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) The Loan Originator is not in violation of, and the execution and delivery of each Basic Document to which it is a party by the Loan Originator and its performance and compliance with the terms of each Basic Document to which it is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction, which violation would materially and adversely affect the condition (financial condition, business or otherwise) or operations of the Loan Originator or its properties or materially and adversely affect the performance of its duties under any Basic Document to which it is a party;
(e) There are no actions or proceedings against, or investigations of, the Loan Originator currently pending with regard to which the Loan Originator has received service of process and no action or proceeding against, or investigation of, the Loan Originator is, to the knowledge of the Loan Originator’s knowledge, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) if determined adversely to the Loan Originator, would prohibit its entering into any Basic Document to which it is a party or render the Securities invalid, (B) seeks seek to prevent the issuance of the Securities or the consummation of any of the transactions contemplated by any Basic Document to which it is a party or (C) if determined adversely to the Loan Originator, would prohibit have a reasonable possibility of prohibiting or preventing or materially and adversely affect affecting the sale of the Loans to the Depositor, the performance by the Loan Originator of its obligations under, or the validity or enforceability of, any Basic Document to which it is a party or the Securities; provided, however, that insofar as this representation relates to the Loan Originator’s satisfaction of its financial covenants, there is also a reasonable possibility of an adverse determination of such action, proceeding or investigation having such effect;
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for: (1) the execution, delivery and performance by the Loan Originator of, or compliance by the Loan Originator with, any Basic Document to which it is a party, (2) the issuance of the Securities, (3) the sale and contribution of the Eligible Loans to the DepositorLoans, or (34) the consummation of the transactions required of it by any Basic Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Loans to the Issuer, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization, qualification, registration, filing or notice is unlikely to have a material adverse effect on its performance hereunder;
(g) Immediately prior to the sale of any Loans Loan to the Depositor, the Loan Originator had good and valid title to the Loans sold by it on such date free and clear without notice of all Liens other than Permitted Liensany adverse claim;
(h) The information, reports, financial statements, exhibits and schedules furnished in writing by or on behalf of the Loan Originator to the Purchaser in connection with the negotiation, preparation or delivery of the Basic Documents to which it is a party or delivered pursuant thereto, when taken as a whole, do not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. All written information furnished after the date hereof by or on behalf of the Loan Originator to the Noteholder Agent or any Noteholder in connection with the Basic Documents to which it is a party and the transactions contemplated thereby will be true, complete and accurate in every material respect, or (in the case of projections) based on reasonable estimates, on the date as of which such information is stated or certified.
(i) The Loan Originator is solvent, is able to pay its debts as they become due and has capital sufficient to carry on its business and its obligations under each Basic Document to which it is a party; it will not be rendered insolvent by the execution and delivery of this Agreement or by the performance of its obligations under each Basic Document to which it is a party; no petition of bankruptcy (or similar insolvency proceeding) has been filed by or against the Loan Originator prior to the date hereof;
(ij) The Loan Originator has transferred the Loans transferred by it on or prior to such Transfer Date without any intent to hinder, delay or defraud any of its creditors;
(jk) The Loan Originator has received fair consideration and reasonably equivalent value in exchange for the Loans sold and contributed by it on such Transfer Date to the Depositor;
(kl) The Loan Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, commission or compensation in connection with the transaction contemplated by this Agreement;
(lm) The Loan Originator is in compliance with each of its financial covenants set forth in Section 7.02; and
(n) The Loan Originator’s principal place of business and chief executive offices are located at 4000 Xxxxxxx XxxxxxIrvine, Chevy Chase, Maryland, Maryland 20815 California or at such other address as shall be designated by such party in a written notice to the other parties hereto;
(m) The Loan Originator acknowledges . It is understood and agrees agreed that the Servicing Compensation represents reasonable compensation for representations and warranties set forth in this Section 3.02 shall survive delivery of the performance respective Custodial Loan Files to the Custodian (as the agent of its services hereunder the Indenture Trustee) and that shall inure to the entire Servicing Compensation shall be treated benefit of the Securityholders, the Depositor, the Servicer, the Indenture Trustee, the Owner Trustee and the Issuer. Upon discovery by the Loan Originator, for accounting purposesthe Depositor, as compensation for the servicing and administration Servicer, the Indenture Trustee or the Trust of a breach of any of the Loans pursuant foregoing representations and warranties that materially and adversely affects the value of any Loan or the interests of the Securityholders in any Loan or in the Securities, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to this Agreement; and
(n) the other parties. The obligations of the Loan Originator is in compliance with the financial covenants set forth in Sections 2.05 and 3.06 hereof to cure any breach or to substitute for or repurchase an affected Loan shall constitute the sole remedies available hereunder to the Securityholders, the Depositor, the Servicer, the Indenture Trustee or the Trust respecting a breach of the representations and warranties contained in this Section 7.013.02. The fact that the Noteholder Agent or any Noteholder has conducted or has failed to conduct any partial or complete due diligence investigation of the Loan Files shall not affect the Securityholders rights to demand repurchase or substitution as provided under this Agreement.
Appears in 1 contract
Representations and Warranties of the Loan Originator. The Loan Originator hereby represents and warrants to the other parties hereto and the Securityholders that as of the Closing Date and as of each Transfer Date:
(a) The Loan Originator is a limited liability company corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (i) is duly qualified, in good standing and licensed to carry on its business in each state where any Loan Collateral Mortgaged Property related to a Loan sold by it is located to the extent necessary to ensure the enforceability of each Loan and the servicing of the Loan in accordance with Accepted Servicing Practices and (ii) is in compliance with the laws of any such jurisdiction, in both cases, to the extent necessary to ensure the enforceability of such Loan Loans in accordance with the terms thereof and had at all relevant times, full corporate power to originate such LoanLoans, to own its property, to carry on its business as currently conducted and to enter into and perform its obligations under each Basic Document to which it is a party;
(b) The execution and delivery by The the Loan Originator of each Basic Document to which it is a party and its performance of and compliance with the terms thereof will not violate The the Loan Originator’s organizational documents articles of organization or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which The the Loan Originator is a party or which may be applicable to The the Loan Originator or any of its assets in each case that is likely to affect materially and adversely its ability to carry out the transactions contemplated herebyassets;
(c) The Loan Originator has the full power and authority to enter into and consummate all transactions contemplated by the Basic Documents to be consummated by it, has duly authorized the execution, delivery and performance of each Basic Document to which it is a party and has duly executed and delivered each Basic Document to which it is a party; each Basic Document to which it is a party, assuming due authorization, execution and delivery by each of the other parties thereto, constitutes a valid, legal and binding obligation of The the Loan Originator, enforceable against it in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) The Loan Originator is not in violation of, and the execution and delivery of each Basic Document to which it is a party by the Loan Originator and its performance and compliance with the terms of each Basic Document to which it is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction, which violation would materially and adversely affect the condition (financial condition, business or otherwise) or operations of the Loan Originator or its properties or materially and adversely affect the performance of its duties under any Basic Document to which it is a party;
(e) There are no actions or proceedings against, or investigations of, the Loan Originator currently pending with regard to which the Loan Originator has received service of process and no action or proceeding against, or investigation of, the Loan Originator is, to the knowledge of the Loan Originator’s knowledge, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) if determined adversely to the Loan Originator, would prohibit its entering into any Basic Document to which it is a party or render the Securities invalid, (B) seeks seek to prevent the issuance of the Securities or the consummation of any of the transactions contemplated by any Basic Document to which it is a party or (C) if determined adversely to the Loan Originator, would prohibit or materially and adversely affect the sale of the Loans to the Depositor, the performance by the Loan Originator of its obligations under, or the validity or enforceability of, any Basic Document to which it is a party or the Securities;
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for: (1) the execution, delivery and performance by the Loan Originator of, or compliance by the Loan Originator with, any Basic Document to which it is a party, (2) the issuance of the Securities, (3) the sale and contribution of the Eligible Loans to the DepositorLoans, or (34) the consummation of the transactions required of it by any Basic Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Loans to the Issuer, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization, qualification, registration, filing or notice is unlikely to have a material adverse effect on its performance hereunder;
(g) Immediately prior to the sale of any Loans Loan to the Depositor, the Loan Originator had good and valid title to the Loans sold by it on such date free and clear without notice of all Liens other than Permitted Liensany adverse claim;
(h) The information, reports, financial statements, exhibits and schedules furnished in writing by or on behalf of the Loan Originator to the Initial Noteholder in connection with the negotiation, preparation or delivery of the Basic Documents to which it is a party or delivered pursuant thereto, when taken as a whole, do not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. All written information furnished after the date hereof by or on behalf of the Loan Originator to the Initial Noteholder in connection with the Basic Documents to which it is a party and the transactions contemplated thereby will be true, complete and accurate in every material respect, or (in the case of projections) based on reasonable estimates, on the date as of which such information is stated or certified.
(i) The Loan Originator is solvent, is able to pay its debts as they become due and has capital sufficient to carry on its business and its obligations under each Basic Document to which it is a party; it will not be rendered insolvent by the execution and delivery of this Agreement or by the performance of its obligations under each Basic Document to which it is a party; no petition of bankruptcy (or similar insolvency proceeding) has been filed by or against the Loan Originator prior to the date hereof;
(ij) The Loan Originator has transferred the Loans transferred by it on or prior to such Transfer Date without any intent to hinder, delay or defraud any of its creditors;
(jk) The Loan Originator has received fair consideration and reasonably equivalent value in exchange for the Loans sold and contributed by it on such Transfer Date to the Depositor;
(kl) The Loan Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, commission or compensation in connection with the transaction contemplated by this Agreement;
(lm) The Loan Originator is in compliance with each of its financial covenants set forth in Section 7.02; and
(n) The Loan Originator’s principal place of business and chief executive offices are located at 4000 Xxxxxxx XxxxxxIrvine, Chevy Chase, Maryland, Maryland 20815 California or at such other address as shall be designated by such party in a written notice to the other parties hereto;
(m) The Loan Originator acknowledges . It is understood and agrees agreed that the Servicing Compensation represents reasonable compensation for representations and warranties set forth in this Section 3.02 shall survive delivery of the performance respective Custodial Loan Files to the Custodian (as the agent of its services hereunder the Indenture Trustee) and that shall inure to the entire Servicing Compensation shall be treated benefit of the Securityholders, the Depositor, the Servicer, the Indenture Trustee, the Owner Trustee and the Issuer. Upon discovery by the Loan Originator, for accounting purposesthe Depositor, as compensation for the servicing and administration Servicer, the Indenture Trustee or the Trust of a breach of any of the Loans pursuant foregoing representations and warranties that materially and adversely affects the value of any Loan or the interests of the Securityholders in any Loan or in the Securities, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to this Agreement; and
(n) the other parties. The obligations of the Loan Originator is in compliance with the financial covenants set forth in Sections 2.05 and 3.06 hereof to cure any breach or to substitute for or repurchase an affected Loan shall constitute the sole remedies available hereunder to the Securityholders, the Depositor, the Servicer, the Indenture Trustee or the Trust respecting a breach of the representations and warranties contained in this Section 7.013.02. The fact that the Initial Noteholder has conducted or has failed to conduct any partial or complete due diligence investigation of the Loan Files shall not affect the Securityholders rights to demand repurchase or substitution as provided under this Agreement.
Appears in 1 contract
Representations and Warranties of the Loan Originator. The Loan Originator hereby represents and warrants to the other parties hereto Servicer, the Indenture Trustee, the Owner Trustee, the Noteholders and the Securityholders Depositor that as of the Closing Date, as of each Transfer Date and as of each Transfer Collateral Value Excess Date:
(a) The Loan Originator is a limited liability company corporation duly organized, validly existing and in good standing under the laws of the jurisdiction State of its organization Delaware and (i) is duly qualified, in good standing and licensed to carry on its business in each state where any Loan Collateral related to a Loan sold by it is located to the extent necessary to ensure the enforceability of each Loan and the servicing of the Loan in accordance with Accepted Servicing Practices and (ii) is in compliance with the laws of any such jurisdictionstate, in both cases, to the extent necessary to ensure the enforceability of such Loan the Loans in accordance with the terms thereof and had at all relevant times, full corporate power to originate such Loanthe Loans, to own its property, to carry on its business as currently conducted and to enter into and perform its obligations under each Basic Document to which it is a party;
(b) The execution and delivery by The the Loan Originator of each Basic Document to which it is a party and its performance of and compliance with the terms thereof will not violate The the Loan Originator’s organizational documents 's articles of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which The the Loan Originator is a party or which may be applicable to The the Loan Originator or any of its assets in each case that is likely to affect materially and adversely its ability to carry out the transactions contemplated herebyassets;
(c) The Loan Originator has the full power and authority to enter into and consummate all transactions contemplated by the Basic Documents to be consummated by it, has duly authorized the execution, delivery and performance of each Basic Document to which it is a party and has duly executed and delivered each Basic Document to which it is a party; each . Each Basic Document to which it is a party, assuming due authorization, execution and delivery by each of the other parties thereto, constitutes a valid, legal and binding obligation of The the Loan Originator, enforceable against it in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) The Loan Originator is not in violation of, and the execution and delivery of each Basic Document to which it is a party by the Loan Originator and its performance and compliance with the terms of each Basic Document to which it is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction, which violation would materially and adversely affect the condition (financial condition, business or otherwise) or operations of the Loan Originator or its properties or materially and adversely affect the performance of its duties under any Basic Document to which it is a party;
(e) There are no actions or proceedings against, or investigations of, the Loan Originator currently pending with regard to which the Loan Originator has received service of process and no action or proceeding against, or investigation of, the Loan Originator is, to the knowledge of the Loan Originator’s knowledge, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) if determined adversely to the Loan Originator, would prohibit its entering into any Basic Document to which it is a party or render the Securities Notes invalid, (B) seeks seek to prevent the issuance of the Securities Notes or the consummation of any of the transactions contemplated by any Basic Document to which it is a party or (C) if determined adversely to the Loan Originator, would prohibit or materially and adversely affect the sale of the Loans to the Depositor, the performance by the Loan Originator of its obligations under, or the validity or enforceability of, any Basic Document to which it is a party or the SecuritiesNotes;
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for: (1) the execution, delivery and performance by the Loan Originator of, or compliance by the Loan Originator with, any Basic Document to which it is a party, (2) the sale and contribution issuance of the Eligible Notes, (3) the sale of the Loans to under the Depositor, Loan Purchase Agreement or (34) the consummation of the transactions required of it by any Basic Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Loans to the Issuer, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization, qualification, registration, filing or notice is unlikely to have a material adverse effect on its performance hereunder;
(g) Immediately prior to the sale of any Loans to the DepositorTransfer Date related thereto, the Loan Originator had good and valid title to the Loans sold by it on such date free and clear Transfer Date without notice of all Liens other than Permitted Liensany adverse claim;
(h) The information, reports and schedules furnished in writing by or on behalf of the Loan Originator to the Initial Noteholder or any Affiliate thereof with regard to the Loans, the Due Diligence Packages, the Basic Documents and other information identified in Exhibit D hereto (collectively, the "REFERENCED DOCUMENTS"), when taken as a whole, do not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements herein or therein, in light of the circumstances under which they were made, not misleading. All written information furnished after the date hereof by or on behalf of the Loan Originator to the Initial Noteholder or any Affiliate thereof in connection with the Referenced Documents and the transactions contemplated thereby will be true, complete and accurate in every material respect, or (in the case of projections) based on reasonable estimates, on the date as of which such information is stated or certified. Except as disclosed in writing to the Initial Noteholder, there is no fact known to a Responsible Officer of the Loan Originator, after due inquiry, that could reasonably be expected to have a material adverse effect on (a) the property, business, operations, financial condition or prospects of the Loan Originator, (b) the ability of the Loan Originator to perform its obligations under any Basic Document to which it is a party, (c) the validity or enforceability of any of the Basic Documents, (d) the rights and remedies of the Noteholders and the Indenture Trustee under any of the Basic Documents, (e) the timely payment of the principal of or interest on the Notes or other amounts payable in connection therewith or (f) the Loans;
(i) The Loan Originator is solvent, is able to pay its debts as they become due and has capital sufficient to carry on its business and its obligations under each Basic Document to which it is a party; it will not be rendered insolvent by the execution and delivery of this Agreement or by the performance of its obligations under each Basic Document to which it is a party; no petition of bankruptcy (or similar insolvency proceeding) has been filed by or against the Loan Originator prior to the date hereof;
(ij) The As of the Transfer Date related thereto, the Loan Originator has transferred the Loans transferred by it on or prior to such Transfer Date without any intent to hinder, delay or defraud any of its creditors;; and
(jk) The As of the Transfer Date related thereto, the Loan Originator has received fair consideration and reasonably equivalent value in exchange for the Loans sold and contributed by it on such Transfer Date to the Depositor;
(k) The Loan Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, commission or compensation in connection with the transaction contemplated by this Agreement;
(l) The Loan Originator’s principal place of business and chief executive offices are located at 4000 Xxxxxxx Xxxxxx, Chevy Chase, Maryland, Maryland 20815 or at such other address as shall be designated by such party in a written notice to the other parties hereto;
(m) The Loan Originator acknowledges and agrees that the Servicing Compensation represents reasonable compensation for the performance of its services hereunder and that the entire Servicing Compensation shall be treated by the Loan Originator, for accounting purposes, as compensation for the servicing and administration of the Loans pursuant to this Agreement; and
(n) The Loan Originator is in compliance with the financial covenants set forth in Section 7.01.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Franchise Finance Corp of America)
Representations and Warranties of the Loan Originator. The Loan Originator hereby represents and warrants to the other parties hereto and the Securityholders that as of the Closing Date and Date, as of each Transfer Date:
(a) The Loan Originator is a limited liability company corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (i) is duly qualified, in good standing and licensed to carry on its business in each state where any Loan Collateral Mortgaged Property related to a Loan sold by it is located to the extent necessary to ensure the enforceability of each Loan and the servicing of the Loan in accordance with Accepted Servicing Practices and (ii) is in compliance with the laws of any such jurisdiction, in both cases, to the extent necessary to ensure the enforceability of such Loan Loans in accordance with the terms thereof and had at all relevant times, full corporate power to originate such LoanLoans, to own its property, to carry on its business as currently conducted and to enter into and perform its obligations under each Basic Document to which it is a party;
(b) The execution and delivery by The the Loan Originator of each Basic Document to which it is a party and its performance of and compliance with the terms thereof will not violate The the Loan Originator’s organizational documents 's articles of organization or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which The the Loan Originator is a party or which may be applicable to The the Loan Originator or any of its assets in each case that is likely to affect materially and adversely its ability to carry out the transactions contemplated herebyassets;
(c) The Loan Originator has the full power and authority to enter into and consummate all transactions contemplated by the Basic Documents to be consummated by it, has duly authorized the execution, delivery and performance of each Basic Document to which it is a party and has duly executed and delivered each Basic Document to which it is a party; each Basic Document to which it is a party, assuming due authorization, execution and delivery by each of the other parties thereto, constitutes a valid, legal and binding obligation of The the Loan Originator, enforceable against it in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) The Loan Originator is not in violation of, and the execution and delivery of each Basic Document to which it is a party by the Loan Originator and its performance and compliance with the terms of each Basic Document to which it is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction, which violation would materially and adversely affect the condition (financial condition, business or otherwise) or operations of the Loan Originator or its properties or materially and adversely affect the performance of its duties under any Basic Document to which it is a party;
(e) There are no actions or proceedings against, or investigations of, the Loan Originator currently pending with regard to which the Loan Originator has received service of process and no action or proceeding against, or investigation of, the Loan Originator is, to the knowledge of the Loan Originator’s knowledge, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) if determined adversely to the Loan Originator, would reasonably be expected to prohibit its entering into any Basic Document to which it is a party or render the Securities invalid, (B) seeks seek to prevent the issuance of the Securities or the consummation of any of the transactions contemplated by any Basic Document to which it is a party or (C) if determined adversely to the Loan Originator, would reasonably be expected to prohibit or materially and adversely affect the sale of the Loans to the Depositor, the performance by the Loan Originator of its obligations under, or the validity or enforceability of, any Basic Document to which it is a party or the Securities; provided, however, that with respect to the Loan Originator's obligations under Section 9.1(c) of the Note Purchase Agreement, there shall also be a reasonable possibility of an adverse determination of such action, proceeding or investigation;
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for: (1) the execution, delivery and performance by the Loan Originator of, or compliance by the Loan Originator with, any Basic Document to which it is a party, (2) the sale and contribution issuance of the Eligible Loans to Securities, (3) the Depositorsale of the Loans, or (34) the consummation of the transactions required of it by any Basic Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Loans to the Issuer, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization, qualification, registration, filing or notice is unlikely to have a material adverse effect on its performance hereunder;
(g) Immediately prior to the sale of any Loans to the DepositorTransfer Date related thereto, the Loan Originator had good and valid title to the Loans sold by it on such date free and clear Transfer Date without notice of all Liens other than Permitted Liensany adverse claim;
(h) The information, reports, financial statements, exhibits and schedules furnished in writing by or on behalf of the Loan Originator to the Note Purchaser in connection with the negotiation, preparation or delivery of the Basic Documents to which it is a party or delivered pursuant thereto, when taken as a whole, do not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. All written information furnished after the date hereof by or on behalf of the Loan Originator to the Note Purchaser in connection with the Basic Documents to which it is a party and the transactions contemplated thereby will be true, complete and accurate in every material respect, or (in the case of projections) based on reasonable estimates, on the date as of which such information is stated or certified.
(i) The Loan Originator is solvent, is able to pay its debts as they become due and has capital sufficient to carry on its business and its obligations under each Basic Document to which it is a party; it will not be rendered insolvent by the execution and delivery of this Agreement or by the performance of its obligations under each Basic Document to which it is a party; no petition of bankruptcy (or similar insolvency proceeding) has been filed by or against the Loan Originator prior to the date hereof;
(ij) The Loan Originator has transferred the Loans transferred by it on or prior to such Transfer Date without any intent to hinder, delay or defraud any of its creditors;
(jk) The Loan Originator has received fair consideration and reasonably equivalent value in exchange for the Loans sold and contributed by it on such Transfer Date to the DepositorDate;
(kl) The Loan Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, commission or compensation in connection with the transaction contemplated by this Agreement;; and
(lm) The Loan Originator’s 's principal place of business and chief executive offices are located at 4000 Xxxxxxx XxxxxxIrvine, Chevy Chase, Maryland, Maryland 20815 or at such other address as California. It is understood and agreed that the representations and warranties set forth in this Section 3.02 shall be designated by such party in a written notice survive delivery of the respective Custodial Loan Files to the other parties hereto;
Custodian (mas the agent of the Facility Administrator) The Loan Originator acknowledges and agrees that shall inure to the Servicing Compensation represents reasonable compensation for benefit of the performance of its services hereunder Securityholders, the Depositor, the Servicer, the Facility Administrator, the Owner Trustee and that the entire Servicing Compensation shall be treated Company. Upon discovery by the Loan Originator, for accounting purposesthe Depositor, as compensation for the servicing and administration Servicer, the Facility Administrator or the Trust of a breach of any of the Loans pursuant foregoing representations and warranties that materially and adversely affects the value of any Loan or the interests of the Securityholders in any Loan or in the Securities, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to this Agreement; and
(n) the other parties. The obligations of the Loan Originator is in compliance with the financial covenants set forth in Sections 2.05 and 3.06 to cure any breach or to substitute for or repurchase an affected Loan shall constitute the sole remedies available hereunder to the Securityholders, the Depositor, the Servicer, the Facility Administrator or the Trust respecting a breach of the representations and warranties contained in this Section 7.013.02, but shall be cumulative with, and not exclusive of, any remedies provided in any other Basic Document with respect to breaches of the Loan Originator's representations and warranties set forth therein. The fact that the Note Purchaser has conducted or has failed to conduct any partial or complete due diligence investigation of the Loan Files shall not affect the Securityholders, rights to demand repurchase or substitution as provided under this Agreement.
Appears in 1 contract
Representations and Warranties of the Loan Originator. The Loan Originator hereby represents and warrants to the other parties hereto and the Securityholders that as of the Closing Date and as of each Transfer Date:
(a) The Loan Originator is a limited liability company corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (i) is duly qualified, in good standing and licensed to carry on its business in each state where any Loan Collateral Mortgaged Property related to a Loan sold by it is located to the extent necessary to ensure the enforceability of each Loan and the servicing of the Loan in accordance with Accepted Servicing Practices and (ii) is in compliance with the laws of any such jurisdiction, in both cases, to the extent necessary to ensure the enforceability of such Loan Loans in accordance with the terms thereof and had at all relevant times, full corporate power to originate such LoanLoans, to own its property, to carry on its business as currently conducted and to enter into and perform its its' obligations under each Basic Document to which it is a party;
(b) The execution and delivery by The the Loan Originator of each Basic Document to which it is a party and its performance of and compliance with the terms thereof will not violate The the Loan Originator’s organizational documents 's articles of organization or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which The the Loan Originator is a party or which may be applicable to The the Loan Originator or any of its assets in each case that is likely to affect materially and adversely its ability to carry out the transactions contemplated herebyassets;
(c) The Loan Originator has the full power and authority to enter into and consummate all transactions contemplated by the Basic Documents to be consummated by it, has duly authorized the execution, delivery and performance of each Basic Document to which it is a party and has duly executed and delivered each Basic Document to which it is a party; each Basic Document to which it is a party, assuming due authorization, execution and delivery by each of the other parties thereto, constitutes a valid, legal and binding obligation of The the Loan Originator, enforceable against it in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) The Loan Originator is not in violation of, and the execution and delivery of each Basic Document to which it is a party by the Loan Originator and its performance and compliance with the terms of each Basic Document to which it is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction, which violation would materially and adversely affect the condition (financial condition, business or otherwise) or operations of the Loan Originator or its properties or materially and adversely affect the performance of its duties under any Basic Document to which it is a party;
(e) There are no actions or proceedings against, or investigations of, the Loan Originator currently pending with regard to which the Loan Originator has received service of process and no action or proceeding against, or investigation of, the Loan Originator is, to the knowledge of the Loan Originator’s knowledge, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) if determined adversely to the Loan Originator, would prohibit its entering into any Basic Document to which it is a party or render the Securities invalid, (B) seeks seek to prevent the issuance of the Securities or the consummation of any of the transactions contemplated by any Basic Document to which it is a party or (C) if determined adversely to the Loan Originator, would prohibit or materially and adversely affect the sale of the Loans to the Depositor, the performance by the Loan Originator of its obligations under, or the validity or enforceability of, any Basic Document to which it is a party or the Securities;
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for: (1) the execution, delivery and performance by the Loan Originator of, or compliance by the Loan Originator with, any Basic Document to which it is a party, (2) the issuance of the Securities, (3) the sale and contribution of the Eligible Loans to the DepositorLoans, or (34) the consummation of the transactions required of it by any Basic Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Loans to the Issuer, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization, qualification, registration, filing or notice is unlikely to have a material adverse effect on its performance hereunder;
(g) Immediately prior to the sale of any Loans Loan to the Depositor, the Loan Originator had good and valid title to the Loans sold by it on such date free and clear Without notice of all Liens other than Permitted Liensany adverse claim;
(h) The information, reports, financial statements, exhibits and schedules furnished in writing by or on behalf of the Loan Originator to the Initial Noteholder in connection with the negotiation, preparation or delivery of the Basic Documents to which it is a party or delivered pursuant thereto, when taken as a whole, do not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. All written information furnished after the date hereof by or on behalf of the Loan Originator to the Initial Noteholder in connection with the Basic Documents to which it is a party and the transactions contemplated thereby will be true, complete and accurate in every material respect, or (in the case of projections) based on reasonable estimates, on the date as of which such information is stated or certified.
(i) The Loan Originator is solvent, is able to pay its debts as they become due and has capital sufficient to carry on its business and its obligations under each Basic Document to which it is a party; it will not be rendered insolvent by the execution and delivery of this Agreement or by the performance of its obligations under each Basic Document to which it is a party; no petition of bankruptcy (or similar insolvency proceeding) has been filed by or against the Loan Originator prior to the date hereof;
(ij) The Loan Originator has transferred the Loans transferred by it on or prior to such Transfer Date without any intent to hinder, delay or defraud any of its creditors;
(jk) The Loan Originator has received fair consideration and reasonably equivalent value in exchange for the Loans sold and contributed by it on such Transfer Date to the Depositor;
(kl) The Loan Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, commission or compensation in connection with the transaction contemplated by this Agreement;; and
(lm) The Loan Originator’s 's principal place of business and chief executive offices are located at 4000 Xxxxxxx XxxxxxIrvine, Chevy Chase, Maryland, Maryland 20815 California or at such other address as shall be designated by such party in a written notice to the other parties hereto;
(m) The Loan Originator acknowledges and agrees that the Servicing Compensation represents reasonable compensation for the performance of its services hereunder and that the entire Servicing Compensation shall be treated by the Loan Originator, for accounting purposes, as compensation for the servicing and administration of the Loans pursuant to this Agreement; and
(n) The Loan Originator is in compliance with the financial covenants set forth in Section 7.01.
Appears in 1 contract
Representations and Warranties of the Loan Originator. The Loan Originator hereby represents and warrants to the other parties hereto and the Securityholders that as of the Closing Date and as of each Transfer Date:
(a) The Loan Originator is a limited liability company corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (i) is duly qualified, in good standing and licensed to carry on its business in each state where any Loan Collateral Mortgaged Property related to a Loan sold by it is located to the extent necessary to ensure the enforceability of each Loan and the servicing of the Loan in accordance with Accepted Servicing Practices and (ii) is in compliance with the laws of any such jurisdiction, in both cases, to the extent necessary to ensure the enforceability of such Loan Loans in accordance with the terms thereof and had at all relevant times, full corporate power to originate such LoanLoans, to own its property, to carry on its business as currently conducted and to enter into and perform its obligations under each Basic Document to which it is a party;
(b) The execution and delivery by The the Loan Originator of each Basic Document to which it is a party and its performance of and compliance with the terms thereof will not violate The the Loan Originator’s organizational documents 's articles of organization or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which The the Loan Originator is a party or which may be applicable to The the Loan Originator or any of its assets in each case that is likely to affect materially and adversely its ability to carry out the transactions contemplated herebyassets;
(c) The Loan Originator has the full power and authority to enter into and consummate all transactions contemplated by the Basic Documents to be consummated by it, has duly authorized the execution, delivery and performance of each Basic Document to which it is a party and has duly executed and delivered each Basic Document to which it is a party; each Basic Document to which it is a party, assuming due authorization, execution and delivery by each of the other parties thereto, constitutes a valid, legal and binding obligation of The the Loan Originator, enforceable against it in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) The Loan Originator is not in violation of, and the execution and delivery of each Basic Document to which it is a party by the Loan Originator and its performance and compliance with the terms of each Basic Document to which it is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction, which violation would materially and adversely affect the condition (financial condition, business or otherwise) or operations of the Loan Originator or its properties or materially and adversely affect the performance of its duties under any Basic Document to which it is a party;
(e) There are no actions or proceedings against, or investigations of, the Loan Originator currently pending with regard to which the Loan Originator has received service of process and no action or proceeding against, or investigation of, the Loan Originator is, to the knowledge of the Loan Originator’s knowledge, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) has a reasonable probability of being determined adversely to the Loan Originator, and if so determined, would prohibit its entering into any Basic Document to which it is a party or render the Securities invalid, (B) seeks seek to prevent the issuance of the Securities or the consummation of any of the transactions contemplated by any Basic Document to which it is a party or (C) has a reasonable probability of being determined adversely to the Loan Originator, and if so determined, would have a reasonable probability of resulting in damages or other remedies that would prohibit or materially and adversely affect the sale of the Loans to the Depositor, the performance by the Loan Originator of its obligations under, or the validity or enforceability of, any Basic Document to which it is a party or the Securities;
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for: (1) the execution, delivery and performance by the Loan Originator of, or compliance by the Loan Originator with, any Basic Document to which it is a party, (2) the issuance of the Securities, (3) the sale and contribution of the Eligible Loans to the DepositorLoans, or (34) the consummation of the transactions required of it by any Basic Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Loans to the Issuer, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization, qualification, registration, filing or notice is unlikely to have a material adverse effect on its performance hereunder;
(g) Immediately prior to the sale of any Loans Loan to the Depositor, the Loan Originator had good and valid title to the Loans sold by it on such date free and clear of all Liens other than Permitted Liensany lien;
(h) The information, reports, financial statements, exhibits and schedules furnished in writing by or on behalf of the Loan Originator to the Note Agent in connection with the negotiation, preparation or delivery of the Basic Documents to which it is a party or delivered pursuant thereto, when taken as a whole, do not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. All written information furnished after the date hereof by or on behalf of the Loan Originator to the Note Agent in connection with the Basic Documents to which it is a party and the transactions contemplated thereby will be true, complete and accurate in every material respect, or (in the case of projections) based on reasonable estimates, on the date as of which such information is stated or certified.
(i) The Loan Originator is solvent, is able to pay its debts as they become due and has capital sufficient to carry on its business and its obligations under each Basic Document to which it is a party; it will not be rendered insolvent by the execution and delivery of this Agreement or by the performance of its obligations under each Basic Document to which it is a party; no petition of bankruptcy (or similar insolvency proceeding) has been filed by or against the Loan Originator prior to the date hereof;
(ij) The Loan Originator has transferred the Loans transferred by it on or prior to such Transfer Date without any intent to hinder, delay or defraud any of its creditors;
(jk) The Loan Originator has received fair consideration and reasonably equivalent value in exchange for the Loans sold and contributed by it on such Transfer Date to the Depositor;
(kl) The Loan Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, commission or compensation in connection with the transaction contemplated by this Agreement;
(lm) The Loan Originator is in compliance with each of its financial covenants set forth in Section 7.02; and
(n) The Loan Originator’s 's principal place of business and chief executive offices are located at 4000 Xxxxxxx XxxxxxIrvine, Chevy Chase, Maryland, Maryland 20815 California or at such other address as shall be designated by such party in a written notice to the other parties hereto;
(m) The Loan Originator acknowledges . It is understood and agrees agreed that the Servicing Compensation represents reasonable compensation for representations and warranties set forth in this Section 3.02 shall survive delivery of the performance respective Custodial Loan Files to the Custodian (as the agent of its services hereunder the Indenture Trustee) and that shall inure to the entire Servicing Compensation shall be treated benefit of the Securityholders, the Depositor, the Servicer, the Indenture Trustee, the Owner Trustee and the Issuer. Upon discovery by the Loan Originator, for accounting purposesthe Depositor, as compensation for the servicing and administration Servicer, the Indenture Trustee, the Note Agent or the Trust of a breach of any of the Loans pursuant foregoing representations and warranties that materially and adversely affects the value of any Loan or the interests of the Securityholders in any Loan or in the Securities, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to this Agreement; and
(n) the other parties. The obligations of the Loan Originator is in compliance with the financial covenants set forth in Section 7.01.Sections 2.05 and 3.06 hereof to cure any breach or to substitute
Appears in 1 contract
Representations and Warranties of the Loan Originator. The Loan Originator hereby represents and warrants to the other parties hereto Servicer, the Indenture Trustee, the Owner Trustee, the Noteholders and the Securityholders Depositor that as of the Closing Date, as of each Transfer Date and as of each Transfer Collateral Value Excess Date:
(a) The Loan Originator is a limited liability company corporation duly organized, validly existing and in good standing under the laws of the jurisdiction State of its organization Delaware and (i) is duly qualified, in good standing and licensed to carry on its business in each state where any Loan Collateral related to a Loan sold by it is located to the extent necessary to ensure the enforceability of each Loan and the servicing of the Loan in accordance with Accepted Servicing Practices and (ii) is in compliance with the laws of any such jurisdictionstate, in both cases, to the extent necessary to ensure the enforceability of such Loan the Loans in accordance with the terms thereof and had at all relevant times, full corporate power to originate such Loanthe Loans, to own its property, to carry on its business as currently conducted and to enter into and perform its obligations under each Basic Document to which it is a party;
(b) The execution and delivery by The the Loan Originator of each Basic Document to which it is a party and its performance of and compliance with the terms thereof will not violate The the Loan Originator’s organizational documents 's articles of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which The the Loan Originator is a party or which may be applicable to The the Loan Originator or any of its assets in each case that is likely to affect materially and adversely its ability to carry out the transactions contemplated herebyassets;
(c) The Loan Originator has the full power and authority to enter into and consummate all transactions contemplated by the Basic Documents to be consummated by it, has duly authorized the execution, delivery and performance of each Basic Document to which it is a party and has duly executed and delivered each Basic Document to which it is a party; each . Each Basic Document to which it is a party, assuming due authorization, execution and delivery by each of the other parties thereto, constitutes a valid, legal and binding obligation of The the Loan Originator, enforceable against it in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) The Loan Originator is not in violation of, and the execution and delivery of each Basic Document to which it is a party by the Loan Originator and its performance and compliance with the terms of each Basic Document to which it is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction, which violation would materially and adversely affect the condition (financial condition, business or otherwise) or operations of the Loan Originator or its properties or materially and adversely affect the performance of its duties under any Basic Document to which it is a party;
(e) There are no actions or proceedings against, or investigations of, the Loan Originator currently pending with regard to which the Loan Originator has received service of process and no action or proceeding against, or investigation of, the Loan Originator is, to the knowledge of the Loan Originator’s knowledge, threatened or otherwise pending before any court, administrative agency or other tribunal that (Aa) if determined adversely to the Loan Originator, would prohibit its entering into any Basic Document to which it is a party or render the Securities Notes invalid, (Bb) seeks seek to prevent the issuance of the Securities Notes or the consummation of any of the transactions contemplated by any Basic Document to which it is a party or (Cc) if determined adversely to the Loan Originator, would prohibit or materially and adversely affect the sale of the Loans to the Depositor, the performance by the Loan Originator of its obligations under, or the validity or enforceability of, any Basic Document to which it is a party or the SecuritiesNotes;
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for: (1) the execution, delivery and performance by the Loan Originator of, or compliance by the Loan Originator with, any Basic Document to which it is a party, (2) the sale and contribution issuance of the Eligible Notes, (3) the sale of the Loans to under the Depositor, Loan Purchase Agreement or (34) the consummation of the transactions required of it by any Basic Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Loans to the Issuer, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization, qualification, registration, filing or notice is unlikely to have a material adverse effect on its performance hereunder;
(g) Immediately prior to the sale of any Loans to the DepositorTransfer Date related thereto, the Loan Originator had good and valid title to the Loans sold by it on such date free and clear Transfer Date without notice of all Liens other than Permitted Liensany adverse claim;
(h) The information, reports and schedules furnished in writing by or on behalf of the Loan Originator to the Initial Noteholder or any Affiliate thereof with regard to the Loans, the Due Diligence Packages, the Basic Documents and other information identified in Exhibit D hereto (collectively, the "Referenced Documents"), when taken as a whole, do not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements herein or therein, in light of the circumstances under which they were made, not misleading. All written information furnished after the date hereof by or on behalf of the Loan Originator to the Initial Noteholder or any Affiliate thereof in connection with the Referenced Documents and the transactions contemplated thereby will be true, complete and accurate in every material respect, or (in the case of projections) based on reasonable estimates, on the date as of which such information is stated or certified. Except as disclosed in writing to the Initial Noteholder, there is no fact known to a Responsible Officer of the Loan Originator, after due inquiry, that could reasonably be expected to have a material adverse effect on (a) the property, business, operations, financial condition or prospects of the Loan Originator, (b) the ability of the Loan Originator to perform its obligations under any Basic Document to which it is a party, (c) the validity or enforceability of any of the Basic Documents, (d) the rights and remedies of the Noteholders and the Indenture Trustee under any of the Basic Documents, (e) the timely payment of the principal of or interest on the Notes or other amounts payable in connection therewith or (f) the Loans;
(i) The Loan Originator is solvent, is able to pay its debts as they become due and has capital sufficient to carry on its business and its obligations under each Basic Document to which it is a party; it will not be rendered insolvent by the execution and delivery of this Agreement or by the performance of its obligations under each Basic Document to which it is a party; no petition of bankruptcy (or similar insolvency proceeding) has been filed by or against the Loan Originator prior to the date hereof;
(ij) The As of the Transfer Date related thereto, the Loan Originator has transferred the Loans transferred by it on or prior to such Transfer Date without any intent to hinder, delay or defraud any of its creditors;; and
(jk) The As of the Transfer Date related thereto, the Loan Originator has received fair consideration and reasonably equivalent value in exchange for the Loans sold and contributed by it on such Transfer Date to the Depositor;
(k) The Loan Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, commission or compensation in connection with the transaction contemplated by this Agreement;
(l) The Loan Originator’s principal place of business and chief executive offices are located at 4000 Xxxxxxx Xxxxxx, Chevy Chase, Maryland, Maryland 20815 or at such other address as shall be designated by such party in a written notice to the other parties hereto;
(m) The Loan Originator acknowledges and agrees that the Servicing Compensation represents reasonable compensation for the performance of its services hereunder and that the entire Servicing Compensation shall be treated by the Loan Originator, for accounting purposes, as compensation for the servicing and administration of the Loans pursuant to this Agreement; and
(n) The Loan Originator is in compliance with the financial covenants set forth in Section 7.01.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Franchise Finance Corp of America)
Representations and Warranties of the Loan Originator. The Loan Originator hereby represents and warrants to the other parties hereto and the Securityholders that as of the Closing Date and as of each Transfer Date:
(a) The Loan Originator is a limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (i) is duly qualified, in good standing and licensed to carry on its business in each state where any Loan Collateral related to a Loan sold by it is located to the extent necessary to ensure the enforceability of each Loan and the servicing of the Loan in accordance with Accepted Servicing Practices and (ii) is in compliance with the laws of any such jurisdiction, in both cases, to the extent necessary to ensure the enforceability of such Loan in accordance with the terms thereof and had at all relevant times, full power to originate such Loan, to own its property, to carry on its business as currently conducted and to enter into and perform its obligations under each Basic Document to which it is a party;
(b) The execution and delivery by The Loan Originator of each Basic Document to which it is a party and its performance of and compliance with the terms thereof will not violate The Loan Originator’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which The Loan Originator is a party or which may be applicable to The Loan Originator or any of its assets in each case that is likely to affect materially and adversely its ability to carry out the transactions contemplated hereby;
(c) The Loan Originator has the full power and authority to enter into and consummate all transactions contemplated by the Basic Documents to be consummated by it, has duly authorized the execution, delivery and performance of each Basic Document to which it is a party and has duly executed and delivered each Basic Document to which it is a party; each Basic Document to which it is a party, assuming due authorization, execution and delivery by each of the other parties thereto, constitutes a valid, legal and binding obligation of The Loan Originator, enforceable against it in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) The Loan Originator is not in violation of, and the execution and delivery of each Basic Document to which it is a party by the Loan Originator and its performance and compliance with the terms of each Basic Document to which it is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction, which violation would materially and adversely affect the financial condition, business or operations of the Loan Originator or its properties or materially and adversely affect the performance of its duties under any Basic Document to which it is a party;
(e) There are no actions or proceedings against, or investigations of, the Loan Originator currently pending with regard to which the Loan Originator has received service of process and no action or proceeding against, or investigation of, the Loan Originator is, to the Loan Originator’s knowledge, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) would prohibit its entering into any Basic Document to which it is a party or render the Securities invalid, (B) seeks to prevent the issuance of the Securities or the consummation of any of the transactions contemplated by any Basic Document to which it is a party or (C) would prohibit or materially and adversely affect the sale of the Loans to the Depositor, the performance by the Loan Originator of its obligations under, or the validity or enforceability of, any Basic Document to which it is a party or the Securities;
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for: (1) the execution, delivery and performance by the Loan Originator of, or compliance by the Loan Originator with, any Basic Document to which it is a party, (2) the sale and contribution of the Eligible Loans to the DepositorLoans, or (3) the consummation of the transactions required of it by any Basic Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Loans to the Issuer, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization, qualification, registration, filing or notice is unlikely to have a material adverse effect on its performance hereunder;
(g) Immediately prior to the sale of any Loans to the Depositor, the Loan Originator had good and valid title to the Loans sold by it on such date free and clear of all Liens other than Permitted Liens;
(h) The Loan Originator is solvent, is able to pay its debts as they become due and has capital sufficient to carry on its business and its obligations under each Basic Document to which it is a party; it will not be rendered insolvent by the execution and delivery of this Agreement or by the performance of its obligations under each Basic Document to which it is a party; no petition of bankruptcy (or similar insolvency proceeding) has been filed by or against the Loan Originator prior to the date hereof;
(i) The Loan Originator has transferred the Loans transferred by it on or prior to such Transfer Date without any intent to hinder, delay or defraud any of its creditors;
(j) The Loan Originator has received fair consideration and reasonably equivalent value in exchange for the Loans sold and contributed by it on such Transfer Date to the Depositor;
(k) The Loan Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, commission or compensation in connection with the transaction contemplated by this Agreement;
(l) The Loan Originator’s principal place of business and chief executive offices are located at 4000 Xxxxxxx Xxxxxx, Chevy Chase, Maryland, Maryland 20815 or at such other address as shall be designated by such party in a written notice to the other parties hereto;
(m) The Loan Originator acknowledges and agrees that the Servicing Compensation represents reasonable compensation for the performance of its services hereunder and that the entire Servicing Compensation shall be treated by the Loan Originator, for accounting purposes, as compensation for the servicing and administration of the Loans pursuant to this Agreement; and
(n) The Loan Originator is in compliance with the financial covenants set forth in Section 7.01.
Appears in 1 contract
Representations and Warranties of the Loan Originator. The Loan Originator hereby represents and warrants to the other parties hereto and the Securityholders that as of the Closing Date and as of each Transfer Date:
(a) The Loan Originator is a limited liability company corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (i) is duly qualified, in good standing and licensed to carry on its business in each state where any Loan Collateral Mortgaged Property related to a Loan sold by it is located to the extent necessary to ensure the enforceability of each Loan and the servicing of the Loan in accordance with Accepted Servicing Practices and (ii) is in compliance with the laws of any such jurisdiction, in both cases, to the extent necessary to ensure the enforceability of such Loan Loans in accordance with the terms thereof and had at all relevant times, full corporate power to originate such LoanLoans, to own its property, to carry on its business as currently conducted and to enter into and perform its obligations under each Basic Document to which it is a party;
(b) The execution and delivery by The the Loan Originator of each Basic Document to which it is a party and its performance of and compliance with the terms thereof will not violate The the Loan Originator’s organizational documents 's articles of organization or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which The the Loan Originator is a party or which may be applicable to The the Loan Originator or any of its assets in each case that is likely to affect materially and adversely its ability to carry out the transactions contemplated herebyassets;
(c) The Loan Originator has the full power and authority to enter into and consummate all transactions contemplated by the Basic Documents to be consummated by it, has duly authorized the execution, delivery and performance of each Basic Document to which it is a party and has duly executed and delivered each Basic Document to which it is a party; each Basic Document to which it is a party, assuming due authorization, execution and delivery by each of the other parties thereto, constitutes a valid, legal and binding obligation of The the Loan Originator, enforceable against it in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) The Loan Originator is not in violation of, and the execution and delivery of each Basic Document to which it is a party by the Loan Originator and its performance and compliance with the terms of each Basic Document to which it is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction, which violation would materially and adversely affect the condition (financial condition, business or otherwise) or operations of the Loan Originator or its properties or materially and adversely affect the performance of its duties under any Basic Document to which it is a party;
(e) There are no actions or proceedings against, or investigations of, the Loan Originator currently pending with regard to which the Loan Originator has received service of process and no action or proceeding against, or investigation of, the Loan Originator is, to the knowledge of the Loan Originator’s knowledge, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) if determined adversely to the Loan Originator, would prohibit its entering into any Basic Document to which it is a party or render the Securities invalid, (B) seeks seek to prevent the issuance of the Securities or the consummation of any of the transactions contemplated by any Basic Document to which it is a party or (C) if determined adversely to the Loan Originator, would prohibit have a reasonable possibility of prohibiting or preventing or materially and adversely affect affecting the sale of the Loans to the Depositor, the performance by the Loan Originator of its obligations under, or the validity or enforceability of, any Basic Document to which it is a party or the Securities; provided, however, that insofar as this representation relates to the Loan Originator's satisfaction of its financial covenants, there is also a reasonable possibility of an adverse determination of such action, proceeding or investigation having such effect;
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for: (1) the execution, delivery and performance by the Loan Originator of, or compliance by the Loan Originator with, any Basic Document to which it is a party, (2) the issuance of the Securities, (3) the sale and contribution of the Eligible Loans to the DepositorLoans, or (34) the consummation of the transactions required of it by any Basic Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Loans to the Issuer, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization, qualification, registration, filing or notice is unlikely to have a material adverse effect on its performance hereunder;
(g) Immediately prior to the sale of any Loans Loan to the Depositor, the Loan Originator had good and valid title to the Loans sold by it on such date free and clear without notice of all Liens other than Permitted Liensany adverse claim;
(h) The information, reports, financial statements, exhibits and schedules furnished in writing by or on behalf of the Loan Originator to the Committed Purchaser or the Conduit Purchaser in connection with the negotiation, preparation or delivery of the Basic Documents to which it is a party or delivered pursuant thereto, when taken as a whole, do not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. All written information furnished after the date hereof by or on behalf of the Loan Originator to the Noteholder Agent or any Noteholder in connection with the Basic Documents to which it is a party and the transactions contemplated thereby will be true, complete and accurate in every material respect, or (in the case of projections) based on reasonable estimates, on the date as of which such information is stated or certified;
(i) The Loan Originator is solvent, is able to pay its debts as they become due and has capital sufficient to carry on its business and its obligations under each Basic Document to which it is a party; it will not be rendered insolvent by the execution and delivery of this Agreement or by the performance of its obligations under each Basic Document to which it is a party; no petition of bankruptcy (or similar insolvency proceeding) has been filed by or against the Loan Originator prior to the date hereof;
(ij) The Loan Originator has transferred the Loans transferred by it on or prior to such Transfer Date without any intent to hinder, delay or defraud any of its creditors;
(jk) The Loan Originator has received fair consideration and reasonably equivalent value in exchange for the Loans sold and contributed by it on such Transfer Date to the Depositor;
(kl) The Loan Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, commission or compensation in connection with the transaction contemplated by this Agreement;
(lm) The Loan Originator is in compliance with each of its financial covenants set forth in Section 7.02; and
(n) The Loan Originator’s 's principal place of business and chief executive offices are located at 4000 Xxxxxxx XxxxxxIrvine, Chevy Chase, Maryland, Maryland 20815 California or at such other address as shall be designated by such party in a written notice to the other parties hereto;
(m) The Loan Originator acknowledges and agrees that the Servicing Compensation represents reasonable compensation for the performance of its services hereunder and that the entire Servicing Compensation shall be treated by the Loan Originator, for accounting purposes, as compensation for the servicing and administration of the Loans pursuant to this Agreement; and
(n) The Loan Originator is in compliance with the financial covenants set forth in Section 7.01.
Appears in 1 contract
Representations and Warranties of the Loan Originator. The Loan Originator hereby represents and warrants to the other parties hereto and the Securityholders that as of the Closing Date and as of each Transfer Date:
(a) The Loan Originator is a limited liability company corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (i) is duly qualified, in good standing and licensed to carry on its business in each state where any Loan Collateral Mortgaged Property related to a Loan sold by it is located to the extent necessary to ensure the enforceability of each Loan and the servicing of the Loan in accordance with Accepted Servicing Practices and (ii) is in compliance with the laws of any such jurisdiction, in both cases, to the extent necessary to ensure the enforceability of such Loan Loans in accordance with the terms thereof and had at all relevant times, full corporate power to originate such LoanLoans, to own its property, to carry on its business as currently conducted and to enter into and perform its obligations under each Basic Document to which it is a party;
(b) The execution and delivery by The the Loan Originator of each Basic Document to which it is a party and its performance of and compliance with the terms thereof will not violate The the Loan Originator’s organizational documents 's articles of organization or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, ; or result in the breach or acceleration of, any material contract, agreement or other instrument to which The the Loan Originator is a party or which may be applicable to The the Loan Originator or any of its assets in each case that is likely to affect materially and adversely its ability to carry out the transactions contemplated herebyassets;
(c) The Loan Originator has the full power and authority to enter into and consummate all transactions contemplated by the Basic Documents to be consummated by it, has duly authorized the execution, delivery and performance of each Basic Document to which it is a party and has duly executed and delivered each Basic Document to which it is a party; each Basic Document to which it is a party, assuming due authorization, execution and delivery by each of the other parties thereto, constitutes a valid, legal and binding obligation of The the Loan Originator, enforceable against it in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) The Loan Originator is not in violation of, and the execution and delivery of each Basic Document to which it is a party by the Loan Originator and its performance and compliance with the terms of each Basic Document to which it is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction, which violation would materially and adversely affect the condition (financial condition, business or otherwise) or operations of the Loan Originator or its properties or materially and adversely affect the performance of its duties under any Basic Document to which it is a party;
(e) There are no actions or proceedings against, or investigations of, the Loan Originator currently pending with regard to which the Loan Originator has received service of process and no action or proceeding against, or investigation of, the Loan Originator is, to the knowledge of the Loan Originator’s knowledge, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) if determined adversely to the Loan Originator, would prohibit its entering into any Basic Document to which it is a party or render the Securities invalid, (B) seeks seek to prevent the issuance of the Securities or the consummation of any of the transactions contemplated by any Basic Document to which it is a party or (C) if determined adversely to the Loan Originator, would prohibit or materially and adversely affect the sale of the Loans to the Depositor, the performance by the Loan Originator of its obligations under, or the validity or enforceability of, any Basic Document to which it is a party or the Securities;
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for: (1) the execution, delivery and performance by the Loan Originator of, or compliance by the Loan Originator with, any Basic Document to which it is a party, (2) the issuance of the Securities, (3) the sale and contribution of the Eligible Loans to the DepositorLoans, or (34) the consummation of the transactions required of it by any Basic Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Loans to the Issuer, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization, qualification, registration, filing or notice is unlikely to have a material adverse effect on its performance hereunder;
(g) Immediately prior to the sale of any Loans Loan to the Depositor, the Loan Originator had good and valid title to the Loans sold by it on such date free and clear of all Liens other than Permitted Liensany lien;
(h) The information, reports, financial statements, exhibits and schedules furnished in writing by or on behalf of the Loan Originator to the Note Agent in connection with the negotiation, preparation or delivery of the Basic Documents to which it is a party or delivered pursuant thereto, when taken as a whole, do not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. All written information furnished after the date hereof by or on behalf of the Loan Originator to the Note Agent in connection with the Basic Documents to which it is a party and the transactions contemplated thereby will be true, complete and accurate in every material respect, or (in the case of projections) based on reasonable estimates, on the date as of which such information is stated or certified.
(i) The Loan Originator is solvent, is able to pay its debts as they become due and has capital sufficient to carry on its business and its obligations under each Basic Document to which it is a party; it will not be rendered insolvent by the execution and delivery of this Agreement or by the performance of its obligations under each Basic Document to which it is a party; no petition of bankruptcy (or similar insolvency proceeding) has been filed by or against the Loan Originator prior to the date hereof;
(ij) The Loan Originator has transferred the Loans transferred by it on or prior to such Transfer Date without any intent to hinder, delay or defraud any of its creditors;
(jk) The Loan Originator has received fair consideration and reasonably equivalent value in exchange for the Loans sold and contributed by it on such Transfer Date to the Depositor;
(kl) The Loan Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, commission or compensation in connection with the transaction contemplated by this Agreement;
(lm) The Loan Originator is in compliance with each of its financial covenants set forth in Section 7.02; and
(n) The Loan Originator’s 's principal place of business and chief executive offices are located at 4000 Xxxxxxx XxxxxxIrvine, Chevy Chase, Maryland, Maryland 20815 California or at such other address as shall be designated by such party in a written notice to the other parties hereto;
(m) The Loan Originator acknowledges and agrees that the Servicing Compensation represents reasonable compensation for the performance of its services hereunder and that the entire Servicing Compensation shall be treated by the Loan Originator, for accounting purposes, as compensation for the servicing and administration of the Loans pursuant to this Agreement; and
(n) The Loan Originator is in compliance with the financial covenants set forth in Section 7.01.
Appears in 1 contract
Representations and Warranties of the Loan Originator. The Loan Originator hereby represents and warrants to the other parties hereto and the Securityholders that as of the Closing Date and as of each Transfer Date:
(a) The Loan Originator is a limited liability company corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (i) is duly qualified, in good standing and licensed to carry on its business in each state where any Loan Collateral Mortgaged Property related to a Loan sold by it is located to the extent necessary to ensure the enforceability of each Loan and the servicing of the Loan in accordance with Accepted Servicing Practices and (ii) is in compliance with the laws of any such jurisdiction, in both cases, to the extent necessary to ensure the enforceability of such Loan Loans in accordance with the terms thereof and had at all relevant times, full corporate power to originate such LoanLoans, to own its property, to carry on its business as currently conducted and to enter into and perform its obligations under each Basic Document to which it is a party;
(b) The execution and delivery by The the Loan Originator of each Basic Document to which it is a party and its performance of and compliance with the terms thereof will not violate The the Loan Originator’s organizational documents articles of organization or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which The the Loan Originator is a party or which may be applicable to The the Loan Originator or any of its assets in each case that is likely to affect materially and adversely its ability to carry out the transactions contemplated herebyassets;
(c) The Loan Originator has the full power and authority to enter into and consummate all transactions contemplated by the Basic Documents to be consummated by it, has duly authorized the execution, delivery and performance of each Basic Document to which it is a party and has duly executed and delivered each Basic Document to which it is a party; each Basic Document to which it is a party, assuming due authorization, execution and delivery by each of the other parties thereto, constitutes a valid, legal and binding obligation of The the Loan Originator, enforceable against it in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) The Loan Originator is not in violation of, and the execution and delivery of each Basic Document to which it is a party by the Loan Originator and its performance and compliance with the terms of each Basic Document to which it is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction, which violation would materially and adversely affect the condition (financial condition, business or otherwise) or operations of the Loan Originator or its properties or materially and adversely affect the performance of its duties under any Basic Document to which it is a party;
(e) There are no actions or proceedings against, or investigations of, the Loan Originator currently pending with regard to which the Loan Originator has received service of process and no action or proceeding against, or investigation of, the Loan Originator is, to the knowledge of the Loan Originator’s knowledge, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) if determined adversely to the Loan Originator, would reasonably be expected to prohibit its entering into any Basic Document to which it is a party or render the Securities invalid, (B) seeks seek to prevent the issuance of the Securities or the consummation of any of the transactions contemplated by any Basic Document to which it is a party or (C) if determined adversely to the Loan Originator, would prohibit have a reasonable possibility of prohibiting or preventing or materially and adversely affect affecting the sale of the Loans to the Depositor, the performance by the Loan Originator of its obligations under, or the validity or enforceability of, any Basic Document to which it is a party or the Securities; provided, however, that insofar as this representation relates to the Loan Originator’s satisfaction of its financial covenants contained in any Basic Document, there is also a reasonable possibility of an adverse determination of such action, proceeding or investigation having such effect;
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for: (1) the execution, delivery and performance by the Loan Originator of, or compliance by the Loan Originator with, any Basic Document to which it is a party, (2) the issuance of the Securities, (3) the sale and contribution of the Eligible Loans to the DepositorLoans, or (34) the consummation of the transactions required of it by any Basic Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Loans to the Issuer, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization, qualification, registration, filing or notice is unlikely to have a material adverse effect on its performance hereunder;
(g) Immediately prior to the sale of any Loans Loan to the Depositor, the Loan Originator had good and valid title to the Loans such Loan sold by it on such date free and clear without notice of all Liens other than Permitted Liensany adverse claim;
(h) The information, reports, financial statements, exhibits and schedules furnished in writing by or on behalf of the Loan Originator to the Purchaser in connection with the negotiation, preparation or delivery of the Basic Documents to which it is a party or delivered pursuant thereto, when taken as a whole, do not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. All written information furnished after the date hereof by or on behalf of the Loan Originator to the Initial Noteholder or any Noteholder in connection with the Basic Documents to which it is a party and the transactions contemplated thereby will be true, complete and accurate in every material respect, or (in the case of projections) based on reasonable estimates, on the date as of which such information is stated or certified;
(i) The Loan Originator is solvent, is able to pay its debts as they become due and has capital sufficient to carry on its business and its obligations under each Basic Document to which it is a party; it will not be rendered insolvent by the execution and delivery of this Agreement or by the performance of its obligations under each Basic Document to which it is a party; no petition of bankruptcy (or similar insolvency proceeding) has been filed by or against the Loan Originator prior to the date hereof;
(ij) The Loan Originator has transferred the Loans transferred by it on or prior to such Transfer Date without any intent to hinder, delay or defraud any of its creditors;
(jk) The Option One has received fair consideration and reasonably equivalent value in exchange for the Loans sold by it to Option One Capital and the Loan Originator has received fair consideration and reasonably equivalent value in exchange for the Loans sold and contributed by it to on such Transfer Date to the Depositor;
(kl) The Loan Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, commission or compensation in connection with the transaction contemplated by this Agreement;
(lm) Option One is in compliance with each of its financial covenants set forth in Section 7.02;
(n) The Loan Originator’s principal place of business and chief executive offices are located at 4000 Xxxxxxx XxxxxxIrvine, Chevy Chase, Maryland, Maryland 20815 California or at such other address as shall be designated by such party in a written notice to the other parties hereto;; and
(mo) The Whenever the Loan Originator acknowledges becomes aware that a claim is being asserted against the Loan Originator in a judicial, administrative or arbitration forum, in which the amount of claimed damages exceeds $5 million (and agrees without regard to the Loan Originator’s judgment as to the likelihood of actual recovery of such amount or any amount), the Loan Originator shall promptly notify the Initial Noteholder of the existence and general nature of such claim. It is understood and agreed that the Servicing Compensation represents reasonable compensation for representations and warranties set forth in this Section 3.02 shall survive delivery of the performance respective Custodial Loan Files to the Custodian (as the agent of its services hereunder the Indenture Trustee) and that shall inure to the entire Servicing Compensation shall be treated benefit of the Securityholders, the Depositor, the Servicer, the Indenture Trustee, the Owner Trustee and the Issuer. Upon discovery by the Loan Originator, for accounting purposesthe Depositor, as compensation for the servicing and administration Servicer, the Indenture Trustee or the Issuer of a breach of any of the Loans pursuant foregoing representations and warranties that materially and adversely affects the value of any Loan or the interests of the Securityholders in any Loan or in the Securities, the party discovering such breach shall give prompt written notice (but in no event later than two (2) Business Days following such discovery) to this Agreement; and
(n) the other parties and to the Initial Noteholder. The obligations of the Loan Originator is in compliance with the financial covenants set forth in Sections 2.05 and 3.06 hereof to cure any breach or to substitute for or repurchase an affected Loan shall constitute the sole remedies available hereunder to the Securityholders, the Depositor, the Servicer, the Indenture Trustee, the Owner Trustee or the Issuer respecting a breach of the representations and warranties contained in this Section 7.013.02, but shall be cumulative with, and not exclusive of, any remedies provided in any other Basic Document with respect to breaches of the Loan Originator’s representations and warranties set forth therein. The fact that the Initial Noteholder or any Noteholder has conducted or has failed to conduct any partial or complete due diligence investigation of the Loan Files shall not affect the Securityholders rights to demand repurchase or substitution as provided under this Agreement.
Appears in 1 contract
Representations and Warranties of the Loan Originator. The Loan Originator hereby represents and warrants to the other parties hereto and the Securityholders Certificateholders that as of the Closing Date, as of each Transfer Date and as of each Transfer Purchase Value Excess Date:
(a) The Loan Originator is a limited liability company corporation duly organized, validly existing and in good standing under the laws of the jurisdiction State of its organization Delaware and (i) is duly qualified, in good standing and if required by law, licensed to carry on its business in each state where any Loan Collateral related to a Loan sold by it Mortgaged Property is located to the extent necessary to ensure the enforceability of each Loan and the servicing of the Loan in accordance with Accepted Servicing Practices required under applicable law and (ii) is in compliance with the laws of any such jurisdictionstate, in both cases, to the extent necessary to ensure the enforceability of such Loan the Loans in accordance with the terms thereof and had at all relevant times, full corporate power to originate such Loanthe Loans, to own its property, to carry on its business as currently conducted and to enter into and perform its obligations under each Basic Document to which it is a party;its
(b) The execution and delivery by The the Loan Originator of each Basic Document to which it is a party and its performance of and compliance with the terms thereof will not violate The the Loan Originator’s organizational documents 's articles of incorporation or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which The the Loan Originator is a party or which may be applicable to The the Loan Originator or any of its assets in each case that is likely to affect materially and adversely its ability to carry out the transactions contemplated herebyassets;
(c) The Loan Originator has the full power and authority to enter into and consummate all transactions contemplated by the Basic Documents to be consummated by it, has duly authorized the execution, delivery and performance of each Basic Document to which it is a party and has duly executed and delivered each Basic Document to which it is a party; each . Each Basic Document to which it is a party, assuming due authorization, execution and delivery by each of the other parties thereto, constitutes a valid, legal and binding obligation of The the Loan Originator, enforceable against it in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) The Loan Originator is not in violation of, and the execution and delivery of each Basic Document to which it is a party by the Loan Originator and its performance and compliance with the terms of each Basic Document to which it is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction, which violation would materially and adversely affect the condition (financial condition, business or otherwise) or operations of the Loan Originator or its properties or materially and adversely affect the performance of its duties under any Basic Document to which it is a party;
(e) There are no actions or proceedings against, or investigations of, the Loan Originator currently pending with regard to which the Loan Originator has received service of process and no action or proceeding against, or investigation of, the Loan Originator is, to the knowledge of the Loan Originator’s knowledge, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) if determined adversely to the Loan Originator, would prohibit its entering into any Basic Document to which it is a party or render the Securities Certificates invalid, (B) seeks seek to prevent the issuance of the Securities Certificates or the consummation of any of the transactions contemplated by any Basic Document to which it is a party or (C) if determined adversely to the Loan Originator, would prohibit or materially and adversely affect the sale of the Loans to the Depositor, the performance by the Loan Originator of its obligations under, or the validity or enforceability of, any Basic Document to which it is a party or the Securities;the
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for: (1) the execution, delivery and performance by the Loan Originator of, or compliance by the Loan Originator with, any Basic Document to which it is a party, (2) the sale and contribution issuance of the Eligible Certificates, (3) the sale of the Loans to under the Depositor, Loan Purchase Agreement or (34) the consummation of the transactions required of it by any Basic Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Loans to the Issuer, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization, qualification, registration, filing or notice is unlikely to have a material adverse effect on its performance hereunder;
(g) Immediately prior to the sale of any Loans to the DepositorTransfer Date related thereto, the Loan Originator had good and valid title to the Loans sold by it on such date free and clear Transfer Date without notice of all Liens other than Permitted Liensany adverse claim;
(h) The information, reports, financial statements, exhibits and schedules furnished in writing by or on behalf of the Loan Originator to the Initial Class A Certificateholder in connection with the negotiation, preparation or delivery of the Basic Documents to which it is a party or delivered pursuant thereto, when taken as a whole, do not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. All written information furnished after the date hereof by or on behalf of the Loan Originator to the Initial Class A Certificateholder in connection with the Basic Documents to which it is a party and the transactions contemplated thereby will be true, complete and accurate in every material respect, or (in the case of projections) based on reasonable estimates, on the date as of which such information is stated or certified. There is no fact known to a Responsible Officer of the Loan Originator, after due inquiry, that could reasonably be expected to have a material adverse effect on (a) the property, business, operations, financial condition or prospects of the Loan Originator, (b) the ability of the Loan Originator to perform its obligations under any Basic Document to which it is a party, (c) the validity or enforceability of any of the Basic Documents, (d) the rights and remedies of the Initial Class A Certificateholder and the Owner Trustee under any of the Basic Documents, (e) the timely distribution of the principal of or interest on the Certificates or other amounts distributable in connection therewith or (f) the Owner Trust Estate that has not been disclosed to the Initial Class A Certificateholder in a report, financial statement, exhibit, schedule, disclosure letter or other writing furnished to the Initial Class A Certificateholder for use in connection with the transactions contemplated thereby;
(i) The Loan Originator is solvent, is able to pay its debts as they become due and has capital sufficient to carry on its business and its obligations under each Basic Document to which it is a party; it will not be rendered insolvent by the execution and delivery of this Agreement or by the performance of its obligations under each Basic Document to which it is a party; no petition of bankruptcy (or similar insolvency proceeding) has been filed by or against the Loan Originator prior to the date hereof;
(ij) The As of the Transfer Date related thereto, the Loan Originator has transferred the Loans transferred by it on or prior to such Transfer Date without any intent to hinder, delay or defraud any of its creditors;
(jk) The As of the Transfer Date related thereto, the Loan Originator has received fair consideration and reasonably equivalent value in exchange for the Loans sold and contributed by it on such Transfer Date to the Depositor;
(k) The Loan Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, commission or compensation in connection with the transaction contemplated by this Agreement;; and
(l) The Loan Originator’s 's principal place of business and chief executive offices are located at 4000 1850 X. Xxxxxxx XxxxxxXxx., Chevy ChaseXxxxxxx, Maryland, Maryland 20815 or at such other address as shall be designated by such party in a written notice to the other parties hereto;
(m) The Loan Originator acknowledges and agrees that the Servicing Compensation represents reasonable compensation for the performance of its services hereunder and that the entire Servicing Compensation shall be treated by the Loan Originator, for accounting purposes, as compensation for the servicing and administration of the Loans pursuant to this Agreement; and
(n) The Loan Originator is in compliance with the financial covenants set forth in Section 7.01XX 00000.
Appears in 1 contract
Representations and Warranties of the Loan Originator. The Loan Originator hereby represents and warrants to the other parties hereto and the Securityholders that as of the Closing Date and as of each Transfer Date:
(a1) The Loan Originator is a limited liability company corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (i) is duly qualified, in good standing and licensed to carry on its business in each state where any Loan Collateral Mortgaged Property related to a Loan sold by it is located to the extent necessary to ensure the enforceability of each Loan and the servicing of the Loan in accordance with Accepted Servicing Practices and (ii) is in compliance with the laws of any such jurisdiction, in both cases, to the extent necessary to ensure the enforceability of such Loan Loans in accordance with the terms thereof and had at all relevant times, full corporate power to originate such LoanLoans, to own its property, to carry on its business as currently conducted and to enter into and perform its obligations under each Basic Document to which it is a party;
(b2) The execution and delivery by The the Loan Originator of each Basic Document to which it is a party and its performance of and compliance with the terms thereof will not violate The the Loan Originator’s organizational documents articles of organization or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which The the Loan Originator is a party or which may be applicable to The the Loan Originator or any of its assets in each case that is likely to affect materially and adversely its ability to carry out the transactions contemplated herebyassets;
(c3) The Loan Originator has the full power and authority to enter into and consummate all transactions contemplated by the Basic Documents to be consummated by it, has duly authorized the execution, delivery and performance of each Basic Document to which it is a party and has duly executed and delivered each Basic Document to which it is a party; each Basic Document to which it is a party, assuming due authorization, execution and delivery by each of the other parties thereto, constitutes a valid, legal and binding obligation of The the Loan Originator, enforceable against it in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d4) The Loan Originator is not in violation of, and the execution and delivery of each Basic Document to which it is a party by the Loan Originator and its performance and compliance with the terms of each Basic Document to which it is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction, which violation would materially and adversely affect the condition (financial condition, business or otherwise) or operations of the Loan Originator or its properties or materially and adversely affect the performance of its duties under any Basic Document to which it is a party;
(e5) There are no actions or proceedings against, or investigations of, the Loan Originator currently pending with regard to which the Loan Originator has received service of process and no action or proceeding against, or investigation of, the Loan Originator is, to the knowledge of the Loan Originator’s knowledge, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) if determined adversely to the Loan Originator, would prohibit its entering into any Basic Document to which it is a party or render the Securities invalid, (B) seeks seek to prevent the issuance of the Securities or the consummation of any of the transactions contemplated by any Basic Document to which it is a party or (C) if determined adversely to the Loan Originator, would prohibit or materially and adversely affect the sale of the Loans to the Depositor, the performance by the Loan Originator of its obligations under, or the validity or enforceability of, any Basic Document to which it is a party or the Securities;
(f6) No consent, approval, authorization or order of any court or governmental agency or body is required for: (1) the execution, delivery and performance by the Loan Originator of, or compliance by the Loan Originator with, any Basic Document to which it is a party, (2) the issuance of the Securities, (3) the sale and contribution of the Eligible Loans to the DepositorLoans, or (34) the consummation of the transactions required of it by any Basic Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Loans to the Issuer, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization, qualification, registration, filing or notice is unlikely to have a material adverse effect on its performance hereunder;
(g7) Immediately prior to the sale of any Loans Loan to the Depositor, the Loan Originator had good and valid title to the Loans sold by it on such date free and clear without notice of all Liens other than Permitted Liensany adverse claim;
(h8) The information, reports, financial statements, exhibits and schedules furnished in writing by or on behalf of the Loan Originator to the Initial Noteholder in connection with the negotiation, preparation or delivery of the Basic Documents to which it is a party or delivered pursuant thereto, when taken as a whole, do not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. All written information furnished after the date hereof by or on behalf of the Loan Originator to the Initial Noteholder in connection with the Basic Documents to which it is a party and the transactions contemplated thereby will be true, complete and accurate in every material respect, or (in the case of projections) based on reasonable estimates, on the date as of which such information is stated or certified.
(9) The Loan Originator is solvent, is able to pay its debts as they become due and has capital sufficient to carry on its business and its obligations under each Basic Document to which it is a party; it will not be rendered insolvent by the execution and delivery of this Agreement or by the performance of its obligations under each Basic Document to which it is a party; no petition of bankruptcy (or similar insolvency proceeding) has been filed by or against the Loan Originator prior to the date hereof;
(i10) The Loan Originator has transferred the Loans transferred by it on or prior to such Transfer Date without any intent to hinder, delay or defraud any of its creditors;
(j11) The Loan Originator has received fair consideration and reasonably equivalent value in exchange for the Loans sold and contributed by it on such Transfer Date to the Depositor;
(k12) The Loan Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, commission or compensation in connection with the transaction contemplated by this Agreement;; and
(l13) The Loan Originator’s principal place of business and chief executive offices are located at 4000 Xxxxxxx XxxxxxIrvine, Chevy Chase, Maryland, Maryland 20815 California or at such other address as shall be designated by such party in a written notice to the other parties hereto;
(m) The Loan Originator acknowledges . It is understood and agrees agreed that the Servicing Compensation represents reasonable compensation for representations and warranties set forth in this Section 3.02 shall survive delivery of the performance respective Custodial Loan Files to the Custodian (as the agent of its services hereunder the Indenture Trustee) and that shall inure to the entire Servicing Compensation shall be treated benefit of the Securityholders, the Depositor, the Servicer, the Indenture Trustee, the Owner Trustee and the Issuer. Upon discovery by the Loan Originator, for accounting purposesthe Depositor, as compensation for the servicing and administration Servicer, the Indenture Trustee or the Trust of a breach of any of the Loans pursuant foregoing representations and warranties that materially and adversely affects the value of any Loan or the interests of the Securityholders in any Loan or in the Securities, the party discovering such breach shall give prompt written notice (but in no event later than two Business Days following such discovery) to this Agreement; and
(n) the other parties. The obligations of the Loan Originator is in compliance with the financial covenants set forth in Sections 2.05 and 3.06 hereof to cure any breach or to substitute for or repurchase an affected Loan shall constitute the sole remedies available hereunder to the Securityholders, the Depositor, the Servicer, the Indenture Trustee or the Trust respecting a breach of the representations and warranties contained in this Section 7.013.02. The fact that the Initial Noteholder has conducted or has failed to conduct any partial or complete due diligence investigation of the Loan Files shall not affect the Securityholders, rights to demand repurchase or substitution as provided under this Agreement.
Appears in 1 contract
Representations and Warranties of the Loan Originator. The Loan Originator hereby represents and warrants to the other parties hereto and the Securityholders that as of the Closing Date and as of each Transfer Date:
(a) The Loan Originator is a limited liability company corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and (i) is duly qualified, in good standing and licensed to carry on its business in each state where any Loan Collateral Mortgaged Property related to a Loan sold by it is located to the extent necessary to ensure the enforceability of each Loan and the servicing of the Loan in accordance with Accepted Servicing Practices and (ii) is in compliance with the laws of any such jurisdiction, in both cases, to the extent necessary to ensure the enforceability of such Loan Loans in accordance with the terms thereof and had at all relevant times, full corporate power to originate such LoanLoans, to own its property, to carry on its business as currently conducted and to enter into and perform its obligations under each Basic Document to which it is a party;
(b) The execution and delivery by The the Loan Originator of each Basic Document to which it is a party and its performance of and compliance with the terms thereof will not violate The the Loan Originator’s organizational documents articles of organization or by-laws or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach or acceleration of, any material contract, agreement or other instrument to which The the Loan Originator is a party or which may be applicable to The the Loan Originator or any of its assets in each case that is likely to affect materially and adversely its ability to carry out the transactions contemplated herebyassets;
(c) The Loan Originator has the full power and authority to enter into and consummate all transactions contemplated by the Basic Documents to be consummated by it, has duly authorized the execution, delivery and performance of each Basic Document to which it is a party and has duly executed and delivered each Basic Document to which it is a party; each Basic Document to which it is a party, assuming due authorization, execution and delivery by each of the other parties thereto, constitutes a valid, legal and binding obligation of The the Loan Originator, enforceable against it in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting the rights of creditors generally, and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law);
(d) The Loan Originator is not in violation of, and the execution and delivery of each Basic Document to which it is a party by the Loan Originator and its performance and compliance with the terms of each Basic Document to which it is a party will not constitute a violation with respect to, any order or decree of any court or any order or regulation of any federal, state, municipal or governmental agency having jurisdiction, which violation would materially and adversely affect the condition (financial condition, business or otherwise) or operations of the Loan Originator or its properties or materially and adversely affect the performance of its duties under any Basic Document to which it is a party;
(e) There are no actions or proceedings against, or investigations of, the Loan Originator currently pending with regard to which the Loan Originator has received service of process and no action or proceeding against, or investigation of, the Loan Originator is, to the knowledge of the Loan Originator’s knowledge, threatened or otherwise pending before any court, administrative agency or other tribunal that (A) if determined adversely to the Loan Originator, would prohibit its entering into any Basic Document to which it is a party or render the Securities invalid, (B) seeks seek to prevent the issuance of the Securities or the consummation of any of the transactions contemplated by any Basic Document to which it is a party or (C) if determined adversely to the Loan Originator, would prohibit have a reasonable probability of prohibiting or preventing or materially and adversely affect affecting the sale of the Loans to the Depositor, the performance by the Loan Originator of its obligations under, or the validity or enforceability of, any Basic Document to which it is a party or the Securities, provided, however, that, insofar as this representation relates to a Loan Originator’s satisfaction of its financial covenants, there is also a reasonable possibility of such action, proceeding or investigation having such effect;
(f) No consent, approval, authorization or order of any court or governmental agency or body is required for: (1) the execution, delivery and performance by the Loan Originator of, or compliance by the Loan Originator with, any Basic Document to which it is a party, (2) the issuance of the Securities, (3) the sale and contribution of the Eligible Loans to the DepositorLoans, or (34) the consummation of the transactions required of it by any Basic Document to which it is a party, except such as shall have been obtained before such date, other than: (A) the filing or recording of financing statements, instruments of assignment and other similar documents necessary in connection with the sale of the Loans to the Issuer, (B) such consents, approvals, authorizations, qualifications, registrations, filings or notices as have been obtained or made and (C) where the lack of such consent, approval, authorization, qualification, registration, filing or notice is unlikely to have a material adverse effect on its performance hereunder;
(g) Immediately prior to the sale of any Loans Loan to the Depositor, the Loan Originator had good and valid title to the Loans sold by it on such date free and clear without notice of all Liens other than Permitted Liensany adverse claim;
(h) The information, reports, financial statements, exhibits and schedules furnished in writing by or on behalf of the Loan Originator to the Initial Noteholder in connection with the negotiation, preparation or delivery of the Basic Documents to which it is a party or delivered pursuant thereto, when taken as a whole, do not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. All written information furnished after the date hereof by or on behalf of the Loan Originator to the Initial Noteholder in connection with the Basic Documents to which it is a party and the transactions contemplated thereby will be true, complete and accurate in every material respect, or (in the case of projections) based on reasonable estimates, on the date as of which such information is stated or certified.
(i) The Loan Originator is solvent, is able to pay its debts as they become due and has capital sufficient to carry on its business and its obligations under each Basic Document to which it is a party; it will not be rendered insolvent by the execution and delivery of this Agreement or by the performance of its obligations under each Basic Document to which it is a party; no petition of bankruptcy (or similar insolvency proceeding) has been filed by or against the Loan Originator prior to the date hereof;
(ij) The Loan Originator has transferred the Loans transferred by it on or prior to such Transfer Date without any intent to hinder, delay or defraud any of its creditors;
(jk) The Option One has received fair consideration and reasonably equivalent value in exchange for the Loans sold by it to Option One Capital and the Loan Originator has received fair consideration and reasonably equivalent value in exchange for the Loans sold and contributed by it on such Transfer Date to the Depositor;
(k1) The Loan Originator has not dealt with any broker or agent or other Person who might be entitled to a fee, commission or compensation in connection with the transaction contemplated by this Agreement;
(l) The Loan Originator’s principal place of business and chief executive offices are located at 4000 Xxxxxxx Xxxxxx, Chevy Chase, Maryland, Maryland 20815 or at such other address as shall be designated by such party in a written notice to the other parties hereto;
(m) The Loan Originator acknowledges and agrees that the Servicing Compensation represents reasonable compensation for the performance of its services hereunder and that the entire Servicing Compensation shall be treated by the Loan Originator, for accounting purposes, as compensation for the servicing and administration of the Loans pursuant to this Agreement; and
(n) The Loan Originator is in compliance with the financial covenants set forth in Section 7.01.
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