Representations and Warranties of the Seller and the Company. The Seller and the Company represent and warrant to, and covenant with, the Underwriters that: A. The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement (No. 333-84328) on Form S-3 for the registration under the Securities Act of 1933, as amended (the "Act"), of asset backed securities (issuable in series), which registration statement, as amended at the date hereof, has become effective. Such registration statement, as amended to the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the Act and complies in all other material respects with such Rule. The Company proposes to file with the Commission pursuant to Rule 424(b)(2) under the Act a supplement dated the date hereof to the prospectus dated March 13, 2002 relating to the Offered Certificates and the method of distribution thereof and has previously advised the Underwriters of all further information (financial and other) with respect to the Offered Certificates to be set forth therein. Such registration statement, including the exhibits thereto, as amended at the date hereof, is hereinafter called the "Registration Statement"; such prospectus dated March 13, 2002, in the form in which it will be filed with the Commission pursuant to Rule 424(b)(2) under the Act is hereinafter called the "Basic Prospectus"; such supplement dated the date hereof to the Basic Prospectus, in the form in which it will be filed with the Commission pursuant to Rule 424(b)(2) of the Act, is hereinafter called the "Prospectus Supplement"; and the Basic Prospectus and the Prospectus Supplement together are hereinafter called the "Prospectus." Any preliminary form of the Prospectus Supplement which has heretofore been filed pursuant to Rule 424 is hereinafter called a "Preliminary Prospectus Supplement." The Company will file with the Commission within fifteen days of the issuance of the Certificates a report on Form 8-K setting forth specific information concerning the related Mortgage Loans (the "8-K"). B. As of the date hereof, when the Registration Statement became effective, when the Prospectus Supplement is first filed pursuant to Rule 424(b)(2) under the Act, when, prior to the Closing Date (as defined below), any other amendment to the Registration Statement becomes effective, and when any supplement to the Prospectus is filed with the Commission, and at the Closing Date, (i) the Registration Statement, as amended as of any such time, and the Prospectus, as amended or supplemented as of any such time, will comply in all material respects with the applicable requirements of the Act and the rules thereunder and (ii) the Registration Statement, as amended as of any such time, did not and will not contain any untrue statement of a material fact and did not and will not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus, as amended or supplemented as of any such time, did not and will not contain an untrue statement of a material fact and did not and will not omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that neither the Seller nor the Company makes any representation or warranty as to the information contained in or omitted from the Registration Statement or the Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with the Underwriter Information. C. Each of the Seller, the Company, NFI, NovaStar Capital, Inc. (the "Converted Loan Purchaser") and NovaStar REMIC Financing Corporation ("NRFC") (collectively, the "NovaStar Entities") is duly organized, validly existing and in good standing under the laws of the state of its respective incorporation, has full power and authority (corporate and other) to own its properties and conduct its business as now conducted by it, and as described in the Prospectus, and is duly qualified to do business in each jurisdiction in which it conducts business (to the extent such qualification is required by applicable law) or in which the conduct of its business requires such qualification except where the failure to be so qualified does not involve (i) a material risk to, or a material adverse effect on, the business, properties, financial position, operations or results of operations of such entity or (ii) any risk whatsoever as to the enforceability of any Mortgage Loan. D. There are no actions, proceedings or investigations pending, or, to the knowledge of the Seller or the Company, threatened, before any court, governmental agency or body or other tribunal: (i) asserting the invalidity of this Agreement, the Pooling and Servicing Agreement, each ISDA master agreement and related confirmation between Credit Suisse First Boston International and/or Xxxxxx Xxxxxxx Capital Services Inc. and the Novastar Entity party thereto, (the "Swap Agreements"), the assignment by the related Novstar Entity of each Swap Agreement (the "Assignment"), the interest rate cap agreement between the Trustee, on behalf of the Trust, and Citibank, N.A. New York (the "Cap Agreement"), the Mortgage Loan Purchase Agreement, dated as of June 1, 2002 (the "Mortgage Loan Purchase Agreement"), between the Seller and the Company, the Converted Loan Purchase Agreement, dated as of June 1, 2002 (the "Converted Loan Purchase Agreement"), among the Seller, as Servicer and as Originator, the Converted Loan Purchaser and the Trustee, and the REMIC Interests Sale Agreement, dated as of June 1, 2002 (the "REMIC Sale Agreement," and collectively, the "Agreements") between the Company and NRFC, or the Offered Certificates; (ii) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by the Agreements; (iii) which may, individually or in the aggregate, materially and adversely affect the performance by the NovaStar Entities of their respective obligations under, or the validity or enforceability of, the Agreements or the Certificates; or (iv) which may affect adversely the federal income tax attributes of the Offered Certificates as described in the Prospectus. E. The execution and delivery by the NovaStar Entities of the Agreements are within their respective corporate power and have been, or will be, prior to the Closing Date duly authorized by all necessary corporate action on the part of the NovaStar Entities and the execution and delivery of such instruments, the consummation of the transactions therein contemplated and compliance with the provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute or any agreement or instrument to which the NovaStar Entities or any of their affiliates is a party or by which it or any of them is bound or to which any of the property of the NovaStar Entities or any of their affiliates is subject, the NovaStar Entities' charter or bylaws, or any order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities, any of their affiliates or any of their properties; and no consent, approval, authorization or order of, or filing with, any court or governmental agency or body or other tribunal is required for the consummation of the transactions contemplated by this Agreement or the Prospectus in connection with the issuance and sale of the Offered Certificates. Neither the NovaStar Entities nor any of their affiliates is a party to, bound by or in breach or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities or any of their affiliates, which materially and adversely affects, or may in the future materially and adversely affect, (i) the ability of the NovaStar Entities to perform their obligations under the Agreements or (ii) the business, operations, results of operations, financial position, income, properties or assets of the NovaStar Entities. F. This Agreement has been duly executed and delivered by the Seller and the Company, and the other Agreements will be duly executed and delivered by the NovaStar Entities, and each constitutes and will constitute the legal, valid and binding obligation of each of the NovaStar Entities enforceable in accordance with their respective terms, except as enforceability may be limited by (i) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (ii) general principles of equity, whether enforcement is sought in a proceeding at law or in equity. G. The Offered Certificates will conform in all material respects to the description thereof to be contained in the Prospectus and will be duly and validly authorized and, when duly and validly executed, authenticated, issued and delivered in accordance with the Pooling and Servicing Agreement and sold to the Underwriters as provided herein, will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement. H. On the Closing Date, the Initial Mortgage Loans and the Additional Mortgage Loans will conform in all material respects to the description thereof contained in the Prospectus and the representations and warranties contained in this Agreement will be true and correct in all material respects. The representations and warranties of the Seller and the Company set out in the Pooling and Servicing Agreement are hereby made to the Underwriters as though set out herein, and at the dates specified therein, such representations and warranties were or will be true and correct in all material respects. I. The NovaStar Entities possess all material licenses, certificates, permits or other authorizations issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by it and as described in the Prospectus and there are no proceedings, pending or, to the best knowledge of the Seller and the Company, threatened, relating to the revocation or modification of any such license, certificate, permit or other authorization which singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect the business, operations, results of operations, financial position, income, property or assets of the NovaStar Entities. J. Any taxes, fees and other governmental charges in connection with the execution and delivery of the Agreements or the execution and issuance of the Offered Certificates have been or will be paid at or prior to the Closing Date. K. There has not been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the NovaStar Entities or their affiliates, taken as a whole, from March 31, 2002. L. The Agreements will conform in all material respects to the descriptions thereof, if any, contained in the Prospectus. M. Neither the Seller nor the Company is aware of (i) any request by the Commission for any further amendment of the Registration Statement or the Prospectus or for any additional information; (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose; or (iii) any notification with respect to the suspension of the qualification of the Offered Certificates for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Novastar Mortgage Funding Corp Series 2002-2)

Representations and Warranties of the Seller and the Company. The Seller and the Company represent and warrant to, and covenant with, the Underwriters that: A. The Company has filed with the Securities and Exchange Commission (the "“Commission"”) a registration statement (No. 333-~~84328~~121066) on Form S-3 for the registration under the Securities Act of 1933, as amended (the "“Act"”), of asset backed securities (issuable in series), which registration statement, as amended at the date hereof, has become effective. Such registration statement, as amended to the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the Act and complies in all other material respects with such Rule. The Company proposes to file with the Commission pursuant to Rule ~~424(b)(2~~424(b) under the Act a supplement dated the date hereof to the prospectus dated ~~March 13~~December 27, ~~2002~~ 2004 relating to the Offered Certificates and the method of distribution thereof and has previously advised the Underwriters of all further information (financial and other) with respect to the Offered Certificates to be set forth therein. Such registration statement, including the exhibits thereto, as amended at the date hereof, is hereinafter called the "“Registration Statement"”; such prospectus dated ~~March 13~~December 27, ~~2002~~2004, in the form in which it will be filed with the Commission pursuant to Rule ~~424(b)(2~~424(b) under the Act is hereinafter called the "“Basic Prospectus"”; such supplement dated the date hereof to the Basic Prospectus, in the form in which it will be filed with the Commission pursuant to Rule ~~424(b)(2~~424(b) of the Act, is hereinafter called the "“Prospectus Supplement"”; and the Basic Prospectus and the Prospectus Supplement together are hereinafter called the "“Prospectus." ” Any preliminary form of the Prospectus Supplement which has heretofore been filed pursuant to Rule 424 is hereinafter called a "“Preliminary Prospectus Supplement." ” The Company will file with the Commission within fifteen days of the issuance of the Certificates a report on Form 8-K setting forth specific information concerning the related Mortgage Loans (the "“8-K"”). B. As of the date hereof, when the Registration Statement became effective, when the Prospectus Supplement is first filed pursuant to Rule ~~424(b)(2~~424(b) under the Act, when, prior to the Closing Date (as defined below), any other amendment to the Registration Statement becomes effective, and when any supplement to the Prospectus is filed with the Commission, and at the Closing Date, (i) the Registration Statement, as amended as of any such time, and the Prospectus, as amended or supplemented as of any such time, will comply in all material respects with the applicable requirements of the Act and the rules thereunder and (ii) the Registration Statement, as amended as of any such time, did not and will not contain any untrue statement of a material fact and did not and will not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus, as amended or supplemented as of any such time, did not and will not contain an untrue statement of a material fact and did not and will not omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that neither the Seller nor the Company makes any representation or warranty as to the information contained in or omitted from the Registration Statement or the Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with the Underwriter Information. C. Each of the Seller, the Company, ~~NFI, NovaStar Capital, Inc. (the "Converted Loan Purchaser")~~ NFI and NovaStar REMIC Financing Corporation ("“NRFC"”) (collectively, the "“NovaStar Entities"”) is duly organized, validly existing and in good standing under the laws of the state of its respective incorporation, has full power and authority (corporate and other) to own its properties and conduct its business as now conducted by it, and as described in the Prospectus, and is duly qualified to do business in each jurisdiction in which it conducts business (to the extent such qualification is required by applicable law) or in which the conduct of its business requires such qualification except where the failure to be so qualified does not involve (i) a material risk to, or a material adverse effect on, the business, properties, financial position, operations or results of operations of such entity or (ii) any risk whatsoever as to the enforceability of any Mortgage Loan. D. There are no actions, proceedings or investigations pending, or, to the knowledge of the Seller or the Company, threatened, before any court, governmental agency or body or other tribunal: (i) asserting the invalidity of this Agreement, the Pooling and Servicing Agreement, each ISDA master agreement and related confirmation between ~~Credit Suisse First Boston International and/or Xxxxxx Xxxxxxx Capital Services Inc.~~ The Royal Bank of Scotland plc, Wachovia Bank, N.A. or Deutsche Bank AG and the ~~Novastar~~ related NovaStar Entity that is a party thereto, (the ~~"Swap~~ “Hedge Agreements"”), the assignment by the related ~~Novstar~~ NovaStar Entity of each ~~Swap~~ Hedge Agreement (the "“Assignment~~"), the interest rate cap agreement between the Trustee, on behalf of the Trust, and Citibank, N.A. New York (the "Cap Agreement"~~”), the Mortgage Loan Purchase Agreement, dated as of ~~June~~ December 1, ~~2002~~ 2005 (the "“Mortgage Loan Purchase Agreement"”), between the Seller and the Company, the Converted Loan Purchase Agreement, dated as of June 1, 2002 (the "Converted Loan Purchase Agreement"), among the Seller, as Servicer and as Originator, the Converted Loan Purchaser and the Trustee, Company and the REMIC Interests Sale Agreement, dated as of ~~June 1~~December 15, ~~2002~~ 2005 (the "“REMIC Sale Agreement," ” and collectively, the "“Agreements"”) between the Company and NRFC, or the Offered Certificates; (ii) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by the Agreements; (iii) which may, individually or in the aggregate, materially and adversely affect the performance by the NovaStar Entities of their respective obligations under, or the validity or enforceability of, the Agreements or the Certificates; or (iv) which may affect adversely the federal income tax attributes of the Offered Certificates as described in the Prospectus. E. The execution and delivery by the NovaStar Entities of the Agreements are within their respective corporate power and have been, or will be, prior to the Closing Date duly authorized by all necessary corporate action on the part of the NovaStar Entities and the execution and delivery of such instruments, the consummation of the transactions therein contemplated and compliance with the provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute or any agreement or instrument to which the NovaStar Entities or any of their affiliates is a party or by which it or any of them is bound or to which any of the property of the NovaStar Entities or any of their affiliates is subject, the NovaStar Entities' ’ charter or bylaws, or any order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities, any of their affiliates or any of their properties; and no consent, approval, authorization or order of, or filing with, any court or governmental agency or body or other tribunal is required for the consummation of the transactions contemplated by this Agreement or the Prospectus in connection with the issuance and sale of the Offered Certificates. Neither the NovaStar Entities nor any of their affiliates is a party to, bound by or in breach or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities or any of their affiliates, which materially and adversely affects, or may in the future materially and adversely affect, (i) the ability of the NovaStar Entities to perform their obligations under the Agreements or (ii) the business, operations, results of operations, financial position, income, properties or assets of the NovaStar Entities. F. This Agreement has been duly executed and delivered by the Seller and the Company, and the other Agreements will be duly executed and delivered by the NovaStar Entities, and each constitutes and will constitute the legal, valid and binding obligation of each of the NovaStar Entities enforceable in accordance with their respective terms, except as enforceability may be limited by (i) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (ii) general principles of equity, whether enforcement is sought in a proceeding at law or in equity. G. The Offered Certificates will conform in all material respects to the description thereof to be contained in the Prospectus and will be duly and validly authorized and, when duly and validly executed, authenticated, issued and delivered in accordance with the Pooling and Servicing Agreement and sold to the Underwriters as provided herein, will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement. H. On the Closing Date, the ~~Initial Mortgage Loans and the Additional~~ Closing Date Mortgage Loans will conform in all material respects to the description thereof contained in the Prospectus and the representations and warranties contained in this Agreement will be true and correct in all material respects. On each Subsequent Transfer Date, the Subsequent Mortgage Loans will conform to the criteria set forth in the Prospectus Supplement. The representations and warranties of the Seller and the Company set out in the Pooling and Servicing Agreement are hereby made to the Underwriters as though set out herein, and at the dates specified therein, such representations and warranties were or will be true and correct in all material respects. I. The NovaStar Entities possess all material licenses, certificates, permits or other authorizations issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by it and as described in the Prospectus and there are no ~~proceedings,~~ proceedings pending or, to the best knowledge of the Seller and the Company, threatened, relating to the revocation or modification of any such license, certificate, permit or other authorization which singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect the business, operations, results of operations, financial position, income, property or assets of the NovaStar Entities. J. Any taxes, fees and other governmental charges in connection with the execution and delivery of the Agreements or the execution and issuance of the Offered Certificates have been or will be paid at or prior to the Closing Date. K. There has not been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the NovaStar Entities or their affiliates, taken as a whole, from ~~March~~ December 31, ~~2002~~2004. L. The Agreements will conform in all material respects to the descriptions thereof, if any, contained in the Prospectus. M. Neither the Company nor the Trust created by the Pooling and Servicing Agreement is an “investment company” within the meaning of such term under the Investment Company Act of 1940 (the “1940 Act”) and the rules and regulations of the Commission thereunder. The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended. N. Neither the Seller nor the Company is aware of (i) any request by the Commission for any further amendment of the Registration Statement or the Prospectus or for any additional information; (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose; or (iii) any notification with respect to the suspension of the qualification of the Offered Certificates for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.

Appears in 1 contract

Samples: Asset Sale Agreement (Novastar Mortgage Funding Trust, Series 2005-4)

Representations and Warranties of the Seller and the Company. The Seller and the Company represent and warrant to, and covenant with, the Underwriters that: A. The Company has filed with the Securities and Exchange Commission (the "“Commission"”) a registration statement (No. 333-~~84328~~114297) on Form S-3 for the registration under the Securities Act of 1933, as amended (the "“Act"”), of asset backed securities (issuable in series), which registration statement, as amended at the date hereof, has become effective. Such registration statement, as amended to the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the Act and complies in all other material respects with such Rule. The Company proposes to file with the Commission pursuant to Rule ~~424(b)(2~~424(b) under the Act a supplement dated the date hereof to the prospectus dated ~~March 13~~April 16, ~~2002~~ 2004 relating to the Offered Certificates and the method of distribution thereof and has previously advised the Underwriters of all further information (financial and other) with respect to the Offered Certificates to be set forth therein. Such registration statement, including the exhibits thereto, as amended at the date hereof, is hereinafter called the "“Registration Statement"”; such prospectus dated ~~March 13~~April 16, ~~2002~~2004, in the form in which it will be filed with the Commission pursuant to Rule ~~424(b)(2~~424(b) under the Act is hereinafter called the "“Basic Prospectus"”; such supplement dated the date hereof to the Basic Prospectus, in the form in which it will be filed with the Commission pursuant to Rule ~~424(b)(2~~424(b) of the Act, is hereinafter called the "“Prospectus Supplement"”; and the Basic Prospectus and the Prospectus Supplement together are hereinafter called the "“Prospectus." ” Any preliminary form of the Prospectus Supplement which has heretofore been filed pursuant to Rule 424 is hereinafter called a "“Preliminary Prospectus Supplement." ” The Company will file with the Commission within fifteen days of the issuance of the Certificates a report on Form 8-K setting forth specific information concerning the related Mortgage Loans (the "“8-K"”). B. As of the date hereof, when the Registration Statement became effective, when the Prospectus Supplement is first filed pursuant to Rule ~~424(b)(2~~424(b) under the Act, when, prior to the Closing Date (as defined below), any other amendment to the Registration Statement becomes effective, and when any supplement to the Prospectus is filed with the Commission, and at the Closing Date, (i) the Registration Statement, as amended as of any such time, and the Prospectus, as amended or supplemented as of any such time, will comply in all material respects with the applicable requirements of the Act and the rules thereunder and (ii) the Registration Statement, as amended as of any such time, did not and will not contain any untrue statement of a material fact and did not and will not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus, as amended or supplemented as of any such time, did not and will not contain an untrue statement of a material fact and did not and will not omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that neither the Seller nor the Company makes any representation or warranty as to the information contained in or omitted from the Registration Statement or the Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with the Underwriter Information. C. Each of the Seller, the Company, ~~NFI, NovaStar Capital, Inc. (the "Converted Loan Purchaser")~~ NFI and NovaStar REMIC Financing Corporation ("“NRFC"”) (collectively, the "“NovaStar Entities"”) is duly organized, validly existing and in good standing under the laws of the state of its respective incorporation, has full power and authority (corporate and other) to own its properties and conduct its business as now conducted by it, and as described in the Prospectus, and is duly qualified to do business in each jurisdiction in which it conducts business (to the extent such qualification is required by applicable law) or in which the conduct of its business requires such qualification except where the failure to be so qualified does not involve (i) a material risk to, or a material adverse effect on, the business, properties, financial position, operations or results of operations of such entity or (ii) any risk whatsoever as to the enforceability of any Mortgage Loan. D. There are no actions, proceedings or investigations pending, or, to the knowledge of the Seller or the Company, threatened, before any court, governmental agency or body or other tribunal: (i) asserting the invalidity of this Agreement, the Pooling and Servicing Agreement, each ISDA master agreement and related confirmation between ~~Credit Suisse First Boston International and/or Xxxxxx Xxxxxxx~~ Greenwich Capital ~~Services~~ Derivatives, Inc. or Wachovia Bank, N.A. and the ~~Novastar~~ related NovaStar Entity that is a party thereto, (the "“Swap Agreements"”), the assignment by the related ~~Novstar~~ NovaStar Entity of each Swap Agreement (the "“Assignment~~"), the interest rate cap agreement between the Trustee, on behalf of the Trust, and Citibank, N.A. New York (the "Cap Agreement"~~”), the Mortgage Loan Purchase Agreement, dated as of ~~June~~ September 1, ~~2002~~ 2004 (the "“Mortgage Loan Purchase Agreement"”), between the Seller and the Company, the Converted Loan Purchase Agreement, dated as of June 1, 2002 (the "Converted Loan Purchase Agreement"), among the Seller, as Servicer and as Originator, the Converted Loan Purchaser and the Trustee, Company and the REMIC Interests Sale Agreement, dated as of ~~June~~ September 1, ~~2002~~ 2004 (the "“REMIC Sale Agreement," ” and collectively, the "“Agreements"”) between the Company and NRFC, or the Offered Certificates; (ii) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by the Agreements; (iii) which may, individually or in the aggregate, materially and adversely affect the performance by the NovaStar Entities of their respective obligations under, or the validity or enforceability of, the Agreements or the Certificates; or (iv) which may affect adversely the federal income tax attributes of the Offered Certificates as described in the Prospectus. E. The execution and delivery by the NovaStar Entities of the Agreements are within their respective corporate power and have been, or will be, prior to the Closing Date duly authorized by all necessary corporate action on the part of the NovaStar Entities and the execution and delivery of such instruments, the consummation of the transactions therein contemplated and compliance with the provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute or any agreement or instrument to which the NovaStar Entities or any of their affiliates is a party or by which it or any of them is bound or to which any of the property of the NovaStar Entities or any of their affiliates is subject, the NovaStar Entities' ’ charter or bylaws, or any order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities, any of their affiliates or any of their properties; and no consent, approval, authorization or order of, or filing with, any court or governmental agency or body or other tribunal is required for the consummation of the transactions contemplated by this Agreement or the Prospectus in connection with the issuance and sale of the Offered Certificates. Neither the NovaStar Entities nor any of their affiliates is a party to, bound by or in breach or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities or any of their affiliates, which materially and adversely affects, or may in the future materially and adversely affect, (i) the ability of the NovaStar Entities to perform their obligations under the Agreements or (ii) the business, operations, results of operations, financial position, income, properties or assets of the NovaStar Entities. F. This Agreement has been duly executed and delivered by the Seller and the Company, and the other Agreements will be duly executed and delivered by the NovaStar Entities, and each constitutes and will constitute the legal, valid and binding obligation of each of the NovaStar Entities enforceable in accordance with their respective terms, except as enforceability may be limited by (i) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (ii) general principles of equity, whether enforcement is sought in a proceeding at law or in equity. G. The Offered Certificates will conform in all material respects to the description thereof to be contained in the Prospectus and will be duly and validly authorized and, when duly and validly executed, authenticated, issued and delivered in accordance with the Pooling and Servicing Agreement and sold to the Underwriters as provided herein, will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement. H. On the Closing Date, the ~~Initial Mortgage Loans and the Additional~~ Closing Date Mortgage Loans will conform in all material respects to the description thereof contained in the Prospectus and the representations and warranties contained in this Agreement will be true and correct in all material respects. On each Subsequent Transfer Date, the Subsequent Mortgage Loans will conform to the criteria set forth in the Prospectus Supplement. The representations and warranties of the Seller and the Company set out in the Pooling and Servicing Agreement are hereby made to the Underwriters as though set out herein, and at the dates specified therein, such representations and warranties were or will be true and correct in all material respects. I. The NovaStar Entities possess all material licenses, certificates, permits or other authorizations issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by it and as described in the Prospectus and there are no ~~proceedings,~~ proceedings pending or, to the best knowledge of the Seller and the Company, threatened, relating to the revocation or modification of any such license, certificate, permit or other authorization which singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect the business, operations, results of operations, financial position, income, property or assets of the NovaStar Entities. J. Any taxes, fees and other governmental charges in connection with the execution and delivery of the Agreements or the execution and issuance of the Offered Certificates have been or will be paid at or prior to the Closing Date. K. There has not been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the NovaStar Entities or their affiliates, taken as a whole, from ~~March 31~~June 30, ~~2002~~2004. L. The Agreements will conform in all material respects to the descriptions thereof, if any, contained in the Prospectus. M. Neither the Company nor the Trust created by the Pooling and Servicing Agreement is an “investment company” within the meaning of such term under the Investment Company Act of 1940 (the “1940 Act”) and the rules and regulations of the Commission thereunder. The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended. N. Neither the Seller nor the Company is aware of (i) any request by the Commission for any further amendment of the Registration Statement or the Prospectus or for any additional information; (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose; or (iii) any notification with respect to the suspension of the qualification of the Offered Certificates for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.

Appears in 1 contract

Samples: Asset Purchase Agreement (NovaStar Mortgage Funding Trust, Series 2004-3)

Representations and Warranties of the Seller and the Company. The Seller and the Company represent and warrant to, and covenant with, the ~~Underwriters~~ Underwriter that: A. The Company has filed with the Securities and Exchange Commission (the "“Commission"”) a registration statement (No. 333-~~84328~~121066) on Form S-3 for the registration under the Securities Act of 1933, as amended (the "“Act"”), of asset backed securities (issuable in series), which registration statement, as amended at the date hereof, has become effective. Such registration statement, as amended to the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the Act and complies in all other material respects with such Rule. The Company proposes to file with the Commission pursuant to Rule ~~424(b)(2~~424(b) under the Act a supplement dated the date hereof to the prospectus supplement dated ~~March 13~~November 30, ~~2002~~ 2005 to the prospectus dated December 27, 2004 relating to the Offered Certificates and the method of distribution thereof and has previously advised the ~~Underwriters~~ Underwriter of all further information (financial and other) with respect to the Offered Certificates to be set forth therein. Such registration statement, including the exhibits thereto, as amended at the date hereof, is hereinafter called the "“Registration Statement"”; such prospectus dated ~~March 13~~December 27, ~~2002~~2004, in the form in which it will be filed with the Commission pursuant to Rule ~~424(b)(2~~424(b) under the Act is hereinafter called the "“Basic Prospectus"”; such supplement dated November 30, 2005 to the Basic Prospectus, in the form in which it was filed with the Commission on December 13, 2005 pursuant to Rule 424(b) of the Act, is hereinafter called the “Prospectus Supplement”; such supplement dated the date hereof to the Prospectus Supplement to the Basic Prospectus, in the form in which it will be filed with the Commission pursuant to Rule ~~424(b)(2~~424(b) of the Act, is hereinafter called the ~~"Prospectus~~ “Supplement"”; and the Basic Prospectus, the Prospectus Supplement and the ~~Prospectus~~ Supplement together are hereinafter called the "“Prospectus." ” Any preliminary form of the Prospectus Supplement which has heretofore been filed pursuant to Rule 424 is hereinafter called a "“Preliminary Prospectus Supplement." ” The Company will file with the Commission within fifteen days of the issuance of the Certificates a report on Form 8-K setting forth specific information concerning the related Mortgage Loans (the "“8-K"”). B. As of the date hereof, when the Registration Statement became effective, when the ~~Prospectus~~ Supplement is first filed pursuant to Rule ~~424(b)(2~~424(b) under the Act, when, prior to the Closing Date (as defined below), any other amendment to the Registration Statement becomes effective, and when any supplement to the Prospectus is filed with the Commission, and at the Closing Date, (i) the Registration Statement, as amended as of any such time, and the Prospectus, as amended or supplemented as of any such time, will comply in all material respects with the applicable requirements of the Act and the rules thereunder and (ii) the Registration Statement, as amended as of any such time, did not and will not contain any untrue statement of a material fact and did not and will not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus, as amended or supplemented as of any such time, did not and will not contain an untrue statement of a material fact and did not and will not omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that neither the Seller nor the Company makes any representation or warranty as to the information contained in or omitted from the Registration Statement or the Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with the Underwriter Information. C. Each of the Seller, the Company, ~~NFI, NovaStar Capital, Inc. (the "Converted Loan Purchaser")~~ NFI and NovaStar REMIC Financing Corporation ("“NRFC"”) (collectively, the "“NovaStar Entities"”) is duly organized, validly existing and in good standing under the laws of the state of its respective incorporation, has full power and authority (corporate and other) to own its properties and conduct its business as now conducted by it, and as described in the Prospectus, and is duly qualified to do business in each jurisdiction in which it conducts business (to the extent such qualification is required by applicable law) or in which the conduct of its business requires such qualification except where the failure to be so qualified does not involve (i) a material risk to, or a material adverse effect on, the business, properties, financial position, operations or results of operations of such entity or (ii) any risk whatsoever as to the enforceability of any Mortgage Loan. D. There are no actions, proceedings or investigations pending, or, to the knowledge of the Seller or the Company, threatened, before any court, governmental agency or body or other tribunal: (i) asserting the invalidity of this Agreement, Amendment No. 1, the Underwriting Agreement, dated as of November 30, 2005 (the “Initial Underwriting Agreement”), the Pooling and Servicing Agreement, each ISDA master agreement and related confirmation between ~~Credit Suisse First Boston International and/or Xxxxxx Xxxxxxx Capital Services Inc.~~ The Royal Bank of Scotland plc, Wachovia Bank, N.A. or Deutsche Bank AG and the ~~Novastar~~ related NovaStar Entity that is a party thereto, (the ~~"Swap~~ “Hedge Agreements"”), the assignment by the related ~~Novstar~~ NovaStar Entity of each ~~Swap~~ Hedge Agreement (the "“Assignment~~"), the interest rate cap agreement between the Trustee, on behalf of the Trust, and Citibank, N.A. New York (the "Cap Agreement"~~”), the Mortgage Loan Purchase Agreement, dated as of ~~June~~ December 1, ~~2002~~ 2005 (the "“Mortgage Loan Purchase Agreement"”), between the Seller and the Company, the Converted Loan Purchase Agreement, dated as of June 1, 2002 (the "Converted Loan Purchase Agreement"), among the Seller, as Servicer and as Originator, the Converted Loan Purchaser and the Trustee, Company and the REMIC Interests Sale Agreement, dated as of ~~June 1~~December 15, ~~2002~~ 2005 (the "“REMIC Sale Agreement," ”, and ~~collectively~~together with the Initial Underwriting Agreement, the "Pooling and Servicing Agreement, the Hedge Agreements", the Assignment and the Mortgage Loan Purchase Agreement, the “Initial Agreements”) between the Company and NRFC, or the Offered Certificates; (ii) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by the ~~Agreements~~Agreements (as defined below); (iii) which may, individually or in the aggregate, materially and adversely affect the performance by the NovaStar Entities of their respective obligations under, or the validity or enforceability of, the Agreements or the Certificates; or (iv) which may affect adversely the federal income tax attributes of the Offered Certificates as described in the Prospectus. This Agreement and Amendment No. 1 are herein referred to as the “Agreements”. E. The execution and delivery by the NovaStar Entities of the Agreements are within their respective corporate power and have been, or will be, prior to the Closing Date duly authorized by all necessary corporate action on the part of the NovaStar Entities and the execution and delivery of such instruments, the consummation of the transactions therein contemplated and compliance with the provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute or any agreement or instrument to which the NovaStar Entities or any of their affiliates is a party or by which it or any of them is bound or to which any of the property of the NovaStar Entities or any of their affiliates is subject, the NovaStar Entities' ’ charter or bylaws, or any order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities, any of their affiliates or any of their properties; and no consent, approval, authorization or order of, or filing with, any court or governmental agency or body or other tribunal is required for the consummation of the transactions contemplated by this Agreement or the Prospectus in connection with the issuance and sale of the Offered Certificates. Neither the NovaStar Entities nor any of their affiliates is a party to, bound by or in breach or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities or any of their affiliates, which materially and adversely affects, or may in the future materially and adversely affect, (i) the ability of the NovaStar Entities to perform their obligations under the Agreements or (ii) the business, operations, results of operations, financial position, income, properties or assets of the NovaStar Entities. F. This Agreement has been duly executed and delivered by the Seller and the Company, and the other ~~Agreements~~ Agreement will be duly executed and delivered by the NovaStar Entities, and each constitutes and will constitute the legal, valid and binding obligation of each of the NovaStar Entities enforceable in accordance with their respective terms, except as enforceability may be limited by (i) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (ii) general principles of equity, whether enforcement is sought in a proceeding at law or in equity. G. The Offered Certificates will conform in all material respects to the description thereof to be contained in the Prospectus and will be duly and validly authorized and, when duly and validly executed, authenticated, issued and delivered in accordance with the Pooling and Servicing Agreement and sold to the ~~Underwriters~~ Underwriter as provided herein, will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement. H. On the Closing Date, the ~~Initial Mortgage Loans and the Additional~~ Closing Date Mortgage Loans will conform in all material respects to the description thereof contained in the Prospectus and the representations and warranties contained in this Agreement will be true and correct in all material respects. On each Subsequent Transfer Date, the Subsequent Mortgage Loans will conform to the criteria set forth in the Prospectus Supplement. The representations and warranties of the Seller and the Company set out in the Pooling and Servicing Agreement are hereby made to the ~~Underwriters~~ Underwriter as though set out herein, and at the dates specified therein, such representations and warranties were or will be true and correct in all material respects. I. The NovaStar Entities possess all material licenses, certificates, permits or other authorizations issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by it and as described in the Prospectus and there are no ~~proceedings,~~ proceedings pending or, to the best knowledge of the Seller and the Company, threatened, relating to the revocation or modification of any such license, certificate, permit or other authorization which singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect the business, operations, results of operations, financial position, income, property or assets of the NovaStar Entities. J. Any taxes, fees and other governmental charges in connection with the execution and delivery of the Agreements or the execution and issuance of the Offered Certificates have been or will be paid at or prior to the Closing Date. K. There has not been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the NovaStar Entities or their affiliates, taken as a whole, from ~~March~~ December 31, ~~2002~~2004. L. The Agreements will conform in all material respects to the descriptions thereof, if any, contained in the Prospectus. M. Neither the Company nor the Trust created by the Pooling and Servicing Agreement is an “investment company” within the meaning of such term under the Investment Company Act of 1940 (the “1940 Act”) and the rules and regulations of the Commission thereunder. The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended. N. Neither the Seller nor the Company is aware of (i) any request by the Commission for any further amendment of the Registration Statement or the Prospectus or for any additional information; (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose; or (iii) any notification with respect to the suspension of the qualification of the Offered Certificates for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. O. The Company is not an “ineligible issuer” as defined in Rule 405 of the Act.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Novastar Mortgage Funding Trust, Series 2005-4)

Representations and Warranties of the Seller and the Company. The Seller and the Company represent and warrant to, and covenant with, the Underwriters that: A. The Company has filed with the Securities and Exchange Commission (the "“Commission"”) a registration statement (No. 333-~~84328~~121066) on Form S-3 for the registration under the Securities Act of 1933, as amended (the "“Act"”), of asset backed securities (issuable in series), which registration statement, as amended at the date hereof, has become effective. Such registration statement, as amended to the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the Act and complies in all other material respects with such Rule. The Company proposes to file with the Commission pursuant to Rule ~~424(b)(2~~424(b) under the Act a supplement dated the date hereof to the prospectus dated ~~March 13~~December 27, ~~2002~~ 2004 relating to the Offered Certificates and the method of distribution thereof and has previously advised the Underwriters of all further information (financial and other) with respect to the Offered Certificates to be set forth therein. Such registration statement, including the exhibits thereto, as amended at the date hereof, is hereinafter called the "“Registration Statement"”; such prospectus dated ~~March 13~~December 27, ~~2002~~2004, in the form in which it will be filed with the Commission pursuant to Rule ~~424(b)(2~~424(b) under the Act is hereinafter called the "“Basic Prospectus"”; such supplement dated the date hereof to the Basic Prospectus, in the form in which it will be filed with the Commission pursuant to Rule ~~424(b)(2~~424(b) of the Act, is hereinafter called the "“Prospectus Supplement"”; and the Basic Prospectus and the Prospectus Supplement together are hereinafter called the "“Prospectus." ” Any preliminary form of the Prospectus Supplement which has heretofore been filed pursuant to Rule 424 is hereinafter called a "“Preliminary Prospectus Supplement." ” The Company will file with the Commission within fifteen days of the issuance of the Certificates a report on Form 8-K setting forth specific information concerning the related Mortgage Loans (the "“8-K"”). B. As of the date hereof, when the Registration Statement became effective, when the Prospectus Supplement is first filed pursuant to Rule ~~424(b)(2~~424(b) under the Act, when, prior to the Closing Date (as defined below), any other amendment to the Registration Statement becomes effective, and when any supplement to the Prospectus is filed with the Commission, and at the Closing Date, (i) the Registration Statement, as amended as of any such time, and the Prospectus, as amended or supplemented as of any such time, will comply in all material respects with the applicable requirements of the Act and the rules thereunder and (ii) the Registration Statement, as amended as of any such time, did not and will not contain any untrue statement of a material fact and did not and will not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus, as amended or supplemented as of any such time, did not and will not contain an untrue statement of a material fact and did not and will not omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that neither the Seller nor the Company makes any representation or warranty as to the information contained in or omitted from the Registration Statement or the Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with the Underwriter Information. C. Each of the Seller, the Company, ~~NFI, NovaStar Capital, Inc. (the "Converted Loan Purchaser")~~ NFI and NovaStar REMIC Financing Corporation ("“NRFC"”) (collectively, the "“NovaStar Entities"”) is duly organized, validly existing and in good standing under the laws of the state of its respective incorporation, has full power and authority (corporate and other) to own its properties and conduct its business as now conducted by it, and as described in the Prospectus, and is duly qualified to do business in each jurisdiction in which it conducts business (to the extent such qualification is required by applicable law) or in which the conduct of its business requires such qualification except where the failure to be so qualified does not involve (i) a material risk to, or a material adverse effect on, the business, properties, financial position, operations or results of operations of such entity or (ii) any risk whatsoever as to the enforceability of any Mortgage Loan. D. There are no actions, proceedings or investigations pending, or, to the knowledge of the Seller or the Company, threatened, before any court, governmental agency or body or other tribunal: (i) asserting the invalidity of this Agreement, the Pooling and Servicing Agreement, each ISDA master agreement and related confirmation between ~~Credit Suisse First Boston International and/or Xxxxxx Xxxxxxx~~ Greenwich Capital ~~Services Inc.~~ Derivatives, Inc., Wachovia Bank, N.A. or Deutsche Bank AG and the ~~Novastar~~ related NovaStar Entity that is a party thereto, (the ~~"Swap~~ “Hedge Agreements"”), the assignment by the related ~~Novstar~~ NovaStar Entity of each ~~Swap~~ Hedge Agreement (the "“Assignment~~"), the interest rate cap agreement between the Trustee, on behalf of the Trust, and Citibank, N.A. New York (the "Cap Agreement"~~”), the Mortgage Loan Purchase Agreement, dated as of ~~June~~ May 1, ~~2002~~ 2005 (the "“Mortgage Loan Purchase Agreement"”), between the Seller and the Company, the Converted Loan Purchase Agreement, dated as of June 1, 2002 (the "Converted Loan Purchase Agreement"), among the Seller, as Servicer and as Originator, the Converted Loan Purchaser and the Trustee, Company and the REMIC Interests Sale Agreement, dated as of ~~June~~ May 1, ~~2002~~ 2005 (the "“REMIC Sale Agreement," ” and collectively, the "“Agreements"”) between the Company and NRFC, or the Offered Certificates; (ii) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by the Agreements; (iii) which may, individually or in the aggregate, materially and adversely affect the performance by the NovaStar Entities of their respective obligations under, or the validity or enforceability of, the Agreements or the Certificates; or (iv) which may affect adversely the federal income tax attributes of the Offered Certificates as described in the Prospectus. E. The execution and delivery by the NovaStar Entities of the Agreements are within their respective corporate power and have been, or will be, prior to the Closing Date duly authorized by all necessary corporate action on the part of the NovaStar Entities and the execution and delivery of such instruments, the consummation of the transactions therein contemplated and compliance with the provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute or any agreement or instrument to which the NovaStar Entities or any of their affiliates is a party or by which it or any of them is bound or to which any of the property of the NovaStar Entities or any of their affiliates is subject, the NovaStar Entities' ’ charter or bylaws, or any order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities, any of their affiliates or any of their properties; and no consent, approval, authorization or order of, or filing with, any court or governmental agency or body or other tribunal is required for the consummation of the transactions contemplated by this Agreement or the Prospectus in connection with the issuance and sale of the Offered Certificates. Neither the NovaStar Entities nor any of their affiliates is a party to, bound by or in breach or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities or any of their affiliates, which materially and adversely affects, or may in the future materially and adversely affect, (i) the ability of the NovaStar Entities to perform their obligations under the Agreements or (ii) the business, operations, results of operations, financial position, income, properties or assets of the NovaStar Entities. F. This Agreement has been duly executed and delivered by the Seller and the Company, and the other Agreements will be duly executed and delivered by the NovaStar Entities, and each constitutes and will constitute the legal, valid and binding obligation of each of the NovaStar Entities enforceable in accordance with their respective terms, except as enforceability may be limited by (i) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (ii) general principles of equity, whether enforcement is sought in a proceeding at law or in equity. G. The Offered Certificates will conform in all material respects to the description thereof to be contained in the Prospectus and will be duly and validly authorized and, when duly and validly executed, authenticated, issued and delivered in accordance with the Pooling and Servicing Agreement and sold to the Underwriters as provided herein, will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement. H. On the Closing Date, the ~~Initial Mortgage Loans and the Additional~~ Closing Date Mortgage Loans will conform in all material respects to the description thereof contained in the Prospectus and the representations and warranties contained in this Agreement will be true and correct in all material respects. On each Subsequent Transfer Date, the Subsequent Mortgage Loans will conform to the criteria set forth in the Prospectus Supplement. The representations and warranties of the Seller and the Company set out in the Pooling and Servicing Agreement are hereby made to the Underwriters as though set out herein, and at the dates specified therein, such representations and warranties were or will be true and correct in all material respects. I. The NovaStar Entities possess all material licenses, certificates, permits or other authorizations issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by it and as described in the Prospectus and there are no ~~proceedings,~~ proceedings pending or, to the best knowledge of the Seller and the Company, threatened, relating to the revocation or modification of any such license, certificate, permit or other authorization which singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect the business, operations, results of operations, financial position, income, property or assets of the NovaStar Entities. J. Any taxes, fees and other governmental charges in connection with the execution and delivery of the Agreements or the execution and issuance of the Offered Certificates have been or will be paid at or prior to the Closing Date. K. There has not been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the NovaStar Entities or their affiliates, taken as a whole, from ~~March~~ December 31, ~~2002~~2004. L. The Agreements will conform in all material respects to the descriptions thereof, if any, contained in the Prospectus. M. Neither the Company nor the Trust created by the Pooling and Servicing Agreement is an “investment company” within the meaning of such term under the Investment Company Act of 1940 (the “1940 Act”) and the rules and regulations of the Commission thereunder. The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended. N. Neither the Seller nor the Company is aware of (i) any request by the Commission for any further amendment of the Registration Statement or the Prospectus or for any additional information; (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose; or (iii) any notification with respect to the suspension of the qualification of the Offered Certificates for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.

Appears in 1 contract

Samples: Asset Sale Agreement (NovaStar Mortgage Funding Trust, Series 2005-2)

Representations and Warranties of the Seller and the Company. The Seller and the Company represent and warrant to, and covenant with, the Underwriters that: A. The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement (No. 333-~~84328~~102282) on Form S-3 for the registration under the Securities Act of 1933, as amended (the "Act"), of asset backed securities (issuable in series), which registration statement, as amended at the date hereof, has become effective. Such registration statement, as amended to the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the Act and complies in all other material respects with such Rule. The Company proposes to file with the Commission pursuant to Rule 424(b)(2) under the Act a supplement dated the date hereof to the prospectus dated ~~March 13~~February 24, ~~2002~~ 2003 relating to the Offered Certificates and the method of distribution thereof and has previously advised the Underwriters of all further information (financial and other) with respect to the Offered Certificates to be set forth therein. Such registration statement, including the exhibits thereto, as amended at the date hereof, is hereinafter called the "Registration Statement"; such prospectus dated ~~March 13~~February 24, ~~2002~~2003, in the form in which it will be filed with the Commission pursuant to Rule 424(b)(2) under the Act is hereinafter called the "Basic Prospectus"; such supplement dated the date hereof to the Basic Prospectus, in the form in which it will be filed with the Commission pursuant to Rule 424(b)(2) of the Act, is hereinafter called the "Prospectus Supplement"; and the Basic Prospectus and the Prospectus Supplement together are hereinafter called the "Prospectus." Any preliminary form of the Prospectus Supplement which has heretofore been filed pursuant to Rule 424 is hereinafter called a "Preliminary Prospectus Supplement." The Company will file with the Commission within fifteen days of the issuance of the Certificates a report on Form 8-K setting forth specific information concerning the related Mortgage Loans (the "8-K"). B. As of the date hereof, when the Registration Statement became effective, when the Prospectus Supplement is first filed pursuant to Rule 424(b)(2) under the Act, when, prior to the Closing Date (as defined below), any other amendment to the Registration Statement becomes effective, and when any supplement to the Prospectus is filed with the Commission, and at the Closing Date, (i) the Registration Statement, as amended as of any such time, and the Prospectus, as amended or supplemented as of any such time, will comply in all material respects with the applicable requirements of the Act and the rules thereunder and (ii) the Registration Statement, as amended as of any such time, did not and will not contain any untrue statement of a material fact and did not and will not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus, as amended or supplemented as of any such time, did not and will not contain an untrue statement of a material fact and did not and will not omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that neither the Seller nor the Company makes any representation or warranty as to the information contained in or omitted from the Registration Statement or the Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with the Underwriter Information. C. Each of the Seller, the Company, NFI, NovaStar Capital, Inc. (the "Converted Loan Purchaser") and NovaStar REMIC Financing Corporation ("NRFC") (collectively, the "NovaStar Entities") is duly organized, validly existing and in good standing under the laws of the state of its respective incorporation, has full power and authority (corporate and other) to own its properties and conduct its business as now conducted by it, and as described in the Prospectus, and is duly qualified to do business in each jurisdiction in which it conducts business (to the extent such qualification is required by applicable law) or in which the conduct of its business requires such qualification except where the failure to be so qualified does not involve (i) a material risk to, or a material adverse effect on, the business, properties, financial position, operations or results of operations of such entity or (ii) any risk whatsoever as to the enforceability of any Mortgage Loan. D. There are no actions, proceedings or investigations pending, or, to the knowledge of the Seller or the Company, threatened, before any court, governmental agency or body or other tribunal: (i) asserting the invalidity of this Agreement, the Pooling and Servicing Agreement, each ISDA master agreement and related confirmation between ~~Credit Suisse First Boston International and/or Xxxxxx Xxxxxxx~~ Greenwich Capital ~~Services~~ Derivatives, Inc. and the ~~Novastar~~ related NovaStar Entity that is a party thereto, (the "Swap Agreements"), each cap agreement between Citibank, N.A. and the related NovaStar Entity that is a party thereto (the "Cap Agreements"), the assignment by the related ~~Novstar~~ NovaStar Entity of each Swap Agreement and each Cap Agreement (the "Assignment~~"), the interest rate cap agreement between the Trustee, on behalf of the Trust, and Citibank, N.A. New York (the "Cap Agreement~~"), the Mortgage Loan Purchase Agreement, dated as of ~~June~~ September 1, ~~2002~~ 2003 (the "Mortgage Loan Purchase Agreement"), between the Seller and the Company, the Converted Loan Purchase Agreement, dated as of ~~June~~ September 1, ~~2002~~ 2003 (the "Converted Loan Purchase Agreement"), among the Seller, as Servicer and as Originator, the Converted Loan Purchaser and the Trustee, and the REMIC Interests Sale Agreement, dated as of ~~June~~ September 1, ~~2002~~ 2003 (the "REMIC Sale Agreement," and collectively, the "Agreements") between the Company and NRFC, or the Offered Certificates; (ii) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by the Agreements; (iii) which may, individually or in the aggregate, materially and adversely affect the performance by the NovaStar Entities of their respective obligations under, or the validity or enforceability of, the Agreements or the Certificates; or (iv) which may affect adversely the federal income tax attributes of the Offered Certificates as described in the Prospectus. E. The execution and delivery by the NovaStar Entities of the Agreements are within their respective corporate power and have been, or will be, prior to the Closing Date duly authorized by all necessary corporate action on the part of the NovaStar Entities and the execution and delivery of such instruments, the consummation of the transactions therein contemplated and compliance with the provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute or any agreement or instrument to which the NovaStar Entities or any of their affiliates is a party or by which it or any of them is bound or to which any of the property of the NovaStar Entities or any of their affiliates is subject, the NovaStar Entities' charter or bylaws, or any order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities, any of their affiliates or any of their properties; and no consent, approval, authorization or order of, or filing with, any court or governmental agency or body or other tribunal is required for the consummation of the transactions contemplated by this Agreement or the Prospectus in connection with the issuance and sale of the Offered Certificates. Neither the NovaStar Entities nor any of their affiliates is a party to, bound by or in breach or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities or any of their affiliates, which materially and adversely affects, or may in the future materially and adversely affect, (i) the ability of the NovaStar Entities to perform their obligations under the Agreements or (ii) the business, operations, results of operations, financial position, income, properties or assets of the NovaStar Entities. F. This Agreement has been duly executed and delivered by the Seller and the Company, and the other Agreements will be duly executed and delivered by the NovaStar Entities, and each constitutes and will constitute the legal, valid and binding obligation of each of the NovaStar Entities enforceable in accordance with their respective terms, except as enforceability may be limited by (i) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (ii) general principles of equity, whether enforcement is sought in a proceeding at law or in equity. G. The Offered Certificates will conform in all material respects to the description thereof to be contained in the Prospectus and will be duly and validly authorized and, when duly and validly executed, authenticated, issued and delivered in accordance with the Pooling and Servicing Agreement and sold to the Underwriters as provided herein, will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement. H. On the Closing Date, the Initial Mortgage Loans ~~and the Additional Mortgage Loans~~ will conform in all material respects to the description thereof contained in the Prospectus and the representations and warranties contained in this Agreement will be true and correct in all material respects. On each Subsequent Transfer Date, the Subsequent Mortgage Loans will conform to the criteria set forth in the Prospectus Supplement. The representations and warranties of the Seller and the Company set out in the Pooling and Servicing Agreement are hereby made to the Underwriters as though set out herein, and at the dates specified therein, such representations and warranties were or will be true and correct in all material respects. I. The NovaStar Entities possess all material licenses, certificates, permits or other authorizations issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by it and as described in the Prospectus and there are no ~~proceedings,~~ proceedings pending or, to the best knowledge of the Seller and the Company, threatened, relating to the revocation or modification of any such license, certificate, permit or other authorization which singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect the business, operations, results of operations, financial position, income, property or assets of the NovaStar Entities. J. Any taxes, fees and other governmental charges in connection with the execution and delivery of the Agreements or the execution and issuance of the Offered Certificates have been or will be paid at or prior to the Closing Date. K. There has not been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the NovaStar Entities or their affiliates, taken as a whole, from ~~March 31~~June 30, ~~2002~~2003. L. The Agreements will conform in all material respects to the descriptions thereof, if any, contained in the Prospectus. M. Neither the Seller nor the Company is aware of (i) any request by the Commission for any further amendment of the Registration Statement or the Prospectus or for any additional information; (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose; or (iii) any notification with respect to the suspension of the qualification of the Offered Certificates for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.

Appears in 1 contract

Samples: Asset Sale Agreement (Novastar Home Equity Loan Asset Backed Cert Series 2003-3)

Representations and Warranties of the Seller and the Company. The Seller and the Company represent and warrant to, and covenant with, the Underwriters that: A. The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement (No. 333-84328) on Form S-3 for the registration under the Securities Act of 1933, as amended (the "Act"), of asset backed securities (issuable in series), which registration statement, as amended at the date hereof, has become effective. Such registration statement, as amended to the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the Act and complies in all other material respects with such Rule. The Company proposes to file with the Commission pursuant to Rule 424(b)(2) under the Act a supplement dated the date hereof to the prospectus dated ~~March 13~~February 24, ~~2002~~ 2003 relating to the Offered Certificates and the method of distribution thereof and has previously advised the Underwriters of all further information (financial and other) with respect to the Offered Certificates to be set forth therein. Such registration statement, including the exhibits thereto, as amended at the date hereof, is hereinafter called the "Registration Statement"; such prospectus dated ~~March 13~~February 24, ~~2002~~2003, in the form in which it will be filed with the Commission pursuant to Rule 424(b)(2) under the Act is hereinafter called the "Basic Prospectus"; such supplement dated the date hereof to the Basic Prospectus, in the form in which it will be filed with the Commission pursuant to Rule 424(b)(2) of the Act, is hereinafter called the "Prospectus Supplement"; and the Basic Prospectus and the Prospectus Supplement together are hereinafter called the "Prospectus." Any preliminary form of the Prospectus Supplement which has heretofore been filed pursuant to Rule 424 is hereinafter called a "Preliminary Prospectus Supplement." The Company will file with the Commission within fifteen days of the issuance of the Certificates a report on Form 8-K setting forth specific information concerning the related Mortgage Loans (the "8-K"). B. As of the date hereof, when the Registration Statement became effective, when the Prospectus Supplement is first filed pursuant to Rule 424(b)(2) under the Act, when, prior to the Closing Date (as defined below), any other amendment to the Registration Statement becomes effective, and when any supplement to the Prospectus is filed with the Commission, and at the Closing Date, (i) the Registration Statement, as amended as of any such time, and the Prospectus, as amended or supplemented as of any such time, will comply in all material respects with the applicable requirements of the Act and the rules thereunder and (ii) the Registration Statement, as amended as of any such time, did not and will not contain any untrue statement of a material fact and did not and will not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus, as amended or supplemented as of any such time, did not and will not contain an untrue statement of a material fact and did not and will not omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that neither the Seller nor the Company makes any representation or warranty as to the information contained in or omitted from the Registration Statement or the Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with the Underwriter Information. C. Each of the Seller, the Company, NFI, NovaStar Capital, Inc. (the "Converted Loan Purchaser") and NovaStar REMIC Financing Corporation ("NRFC") (collectively, the "NovaStar Entities") is duly organized, validly existing and in good standing under the laws of the state of its respective incorporation, has full power and authority (corporate and other) to own its properties and conduct its business as now conducted by it, and as described in the Prospectus, and is duly qualified to do business in each jurisdiction in which it conducts business (to the extent such qualification is required by applicable law) or in which the conduct of its business requires such qualification except where the failure to be so qualified does not involve (i) a material risk to, or a material adverse effect on, the business, properties, financial position, operations or results of operations of such entity or (ii) any risk whatsoever as to the enforceability of any Mortgage Loan. D. There are no actions, proceedings or investigations pending, or, to the knowledge of the Seller or the Company, threatened, before any court, governmental agency or body or other tribunal: (i) asserting the invalidity of this Agreement, the Pooling and Servicing Agreement, each ISDA master agreement and related confirmation between ~~Credit Suisse First Boston International and/or~~ Xxxxxx Xxxxxxx Capital Services Inc. and the ~~Novastar~~ related NovaStar Entity that is a party thereto, (the "Swap Agreements"), the assignment by the related ~~Novstar~~ NovaStar Entity of each Swap Agreement (the "Assignment"), the ~~interest rate cap agreement between the Trustee, on behalf of the Trust, and Citibank, N.A. New York (the "Cap Agreement"), the~~ Mortgage Loan Purchase Agreement, dated as of ~~June~~ February 1, ~~2002~~ 2003 (the "Mortgage Loan Purchase Agreement"), between the Seller and the Company, the Converted Loan Purchase Agreement, dated as of ~~June~~ February 1, ~~2002~~ 2003 (the "Converted Loan Purchase Agreement"), among the Seller, as Servicer and as Originator, the Converted Loan Purchaser and the Trustee, and the REMIC Interests Sale Agreement, dated as of ~~June~~ February 1, ~~2002~~ 2003 (the "REMIC Sale Agreement," and collectively, the "Agreements") between the Company and NRFC, or the Offered Certificates; (ii) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by the Agreements; (iii) which may, individually or in the aggregate, materially and adversely affect the performance by the NovaStar Entities of their respective obligations under, or the validity or enforceability of, the Agreements or the Certificates; or (iv) which may affect adversely the federal income tax attributes of the Offered Certificates as described in the Prospectus. E. The execution and delivery by the NovaStar Entities of the Agreements are within their respective corporate power and have been, or will be, prior to the Closing Date duly authorized by all necessary corporate action on the part of the NovaStar Entities and the execution and delivery of such instruments, the consummation of the transactions therein contemplated and compliance with the provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute or any agreement or instrument to which the NovaStar Entities or any of their affiliates is a party or by which it or any of them is bound or to which any of the property of the NovaStar Entities or any of their affiliates is subject, the NovaStar Entities' charter or bylaws, or any order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities, any of their affiliates or any of their properties; and no consent, approval, authorization or order of, or filing with, any court or governmental agency or body or other tribunal is required for the consummation of the transactions contemplated by this Agreement or the Prospectus in connection with the issuance and sale of the Offered Certificates. Neither the NovaStar Entities nor any of their affiliates is a party to, bound by or in breach or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities or any of their affiliates, which materially and adversely affects, or may in the future materially and adversely affect, (i) the ability of the NovaStar Entities to perform their obligations under the Agreements or (ii) the business, operations, results of operations, financial position, income, properties or assets of the NovaStar Entities. F. This Agreement has been duly executed and delivered by the Seller and the Company, and the other Agreements will be duly executed and delivered by the NovaStar Entities, and each constitutes and will constitute the legal, valid and binding obligation of each of the NovaStar Entities enforceable in accordance with their respective terms, except as enforceability may be limited by (i) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (ii) general principles of equity, whether enforcement is sought in a proceeding at law or in equity. G. The Offered Certificates will conform in all material respects to the description thereof to be contained in the Prospectus and will be duly and validly authorized and, when duly and validly executed, authenticated, issued and delivered in accordance with the Pooling and Servicing Agreement and sold to the Underwriters as provided herein, will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement. H. On the Closing Date, the Initial Mortgage Loans ~~and the Additional Mortgage Loans~~ will conform in all material respects to the description thereof contained in the Prospectus and the representations and warranties contained in this Agreement will be true and correct in all material respects. On each Subsequent Transfer Date, the Subsequent Mortgage Loans will conform to the criteria set forth in the Prospectus Supplement. The representations and warranties of the Seller and the Company set out in the Pooling and Servicing Agreement are hereby made to the Underwriters as though set out herein, and at the dates specified therein, such representations and warranties were or will be true and correct in all material respects. I. The NovaStar Entities possess all material licenses, certificates, permits or other authorizations issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by it and as described in the Prospectus and there are no ~~proceedings,~~ proceedings pending or, to the best knowledge of the Seller and the Company, threatened, relating to the revocation or modification of any such license, certificate, permit or other authorization which singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect the business, operations, results of operations, financial position, income, property or assets of the NovaStar Entities. J. Any taxes, fees and other governmental charges in connection with the execution and delivery of the Agreements or the execution and issuance of the Offered Certificates have been or will be paid at or prior to the Closing Date. K. There has not been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the NovaStar Entities or their affiliates, taken as a whole, from ~~March 31~~February 1, ~~2002~~2003. L. The Agreements will conform in all material respects to the descriptions thereof, if any, contained in the Prospectus. M. Neither the Seller nor the Company is aware of (i) any request by the Commission for any further amendment of the Registration Statement or the Prospectus or for any additional information; (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose; or (iii) any notification with respect to the suspension of the qualification of the Offered Certificates for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.

Appears in 1 contract

Samples: Asset Sale Agreement (Novastar Mortgage Funding Corp Home Eq Ln as Bk Ce Se 03 1)

Representations and Warranties of the Seller and the Company. The Seller and the Company represent and warrant to, and covenant with, the Underwriters that: A. The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement (No. 333-84328) on Form S-3 for the registration under the Securities Act of 1933, as amended (the "Act"), of asset backed securities (issuable in series), which registration statement, as amended at the date hereof, has become effective. Such registration statement, as amended to the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the Act and complies in all other material respects with such Rule. The Company proposes to file with the Commission pursuant to Rule 424(b)(2) under the Act a supplement dated the date hereof to the prospectus dated March 13, 2002 relating to the Offered Certificates and the method of distribution thereof and has previously advised the Underwriters of all further information (financial and other) with respect to the Offered Certificates to be set forth therein. Such registration statement, including the exhibits thereto, as amended at the date hereof, is hereinafter called the "Registration Statement"; such prospectus dated March 13, 2002, in the form in which it will be filed with the Commission pursuant to Rule 424(b)(2) under the Act is hereinafter called the "Basic Prospectus"; such supplement dated the date hereof to the Basic Prospectus, in the form in which it will be filed with the Commission pursuant to Rule 424(b)(2) of the Act, is hereinafter called the "Prospectus Supplement"; and the Basic Prospectus and the Prospectus Supplement together are hereinafter called the "Prospectus." Any preliminary form of the Prospectus Supplement which has heretofore been filed pursuant to Rule 424 is hereinafter called a "Preliminary Prospectus Supplement." The Company will file with the Commission within fifteen days of the issuance of the Certificates a report on Form 8-K setting forth specific information concerning the related Mortgage Loans (the "8-K"). B. As of the date hereof, when the Registration Statement became effective, when the Prospectus Supplement is first filed pursuant to Rule 424(b)(2) under the Act, when, prior to the Closing Date (as defined below), any other amendment to the Registration Statement becomes effective, and when any supplement to the Prospectus is filed with the Commission, and at the Closing Date, (i) the Registration Statement, as amended as of any such time, and the Prospectus, as amended or supplemented as of any such time, will comply in all material respects with the applicable requirements of the Act and the rules thereunder and (ii) the Registration Statement, as amended as of any such time, did not and will not contain any untrue statement of a material fact and did not and will not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus, as amended or supplemented as of any such time, did not and will not contain an untrue statement of a material fact and did not and will not omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that neither the Seller nor the Company makes any representation or warranty as to the information contained in or omitted from the Registration Statement or the Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with the Underwriter Information. C. Each of the Seller, the Company, NFI, NovaStar Capital, Inc. (the "Converted Loan Purchaser") and NovaStar REMIC Financing Corporation ("NRFC") (collectively, the "NovaStar Entities") is duly organized, validly existing and in good standing under the laws of the state of its respective incorporation, has full power and authority (corporate and other) to own its properties and conduct its business as now conducted by it, and as described in the Prospectus, and is duly qualified to do business in each jurisdiction in which it conducts business (to the extent such qualification is required by applicable law) or in which the conduct of its business requires such qualification except where the failure to be so qualified does not involve (i) a material risk to, or a material adverse effect on, the business, properties, financial position, operations or results of operations of such entity or (ii) any risk whatsoever as to the enforceability of any Mortgage Loan. D. There are no actions, proceedings or investigations pending, or, to the knowledge of the Seller or the Company, threatened, before any court, governmental agency or body or other tribunal: (i) asserting the invalidity of this Agreement, the Pooling and Servicing Agreement, each ISDA master agreement and related confirmation between ~~Credit Suisse First Boston International and/or Xxxxxx Xxxxxxx Capital Services Inc.~~ Citibank, N.A. and the Novastar Entity party thereto, (the "Swap Agreements"), the assignment by the related Novstar Entity of each Swap Agreement (the "Assignment"), the interest rate cap agreement between the Trustee, on behalf of the Trust, and Citibank, N.A. New York (the "Cap Agreement"), the Mortgage Loan Purchase Agreement, dated as of ~~June~~ September 1, 2002 (the "Mortgage Loan Purchase Agreement"), between the Seller and the Company, the Converted Loan Purchase Agreement, dated as of ~~June~~ September 1, 2002 (the "Converted Loan Purchase Agreement"), among the Seller, as Servicer and as Originator, the Converted Loan Purchaser and the Trustee, and the REMIC Interests Sale Agreement, dated as of ~~June~~ September 1, 2002 (the "REMIC Sale Agreement," and collectively, the "Agreements") between the Company and NRFC, or the Offered Certificates; (ii) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by the Agreements; (iii) which may, individually or in the aggregate, materially and adversely affect the performance by the NovaStar Entities of their respective obligations under, or the validity or enforceability of, the Agreements or the Certificates; or (iv) which may affect adversely the federal income tax attributes of the Offered Certificates as described in the Prospectus. E. The execution and delivery by the NovaStar Entities of the Agreements are within their respective corporate power and have been, or will be, prior to the Closing Date duly authorized by all necessary corporate action on the part of the NovaStar Entities and the execution and delivery of such instruments, the consummation of the transactions therein contemplated and compliance with the provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute or any agreement or instrument to which the NovaStar Entities or any of their affiliates is a party or by which it or any of them is bound or to which any of the property of the NovaStar Entities or any of their affiliates is subject, the NovaStar Entities' charter or bylaws, or any order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities, any of their affiliates or any of their properties; and no consent, approval, authorization or order of, or filing with, any court or governmental agency or body or other tribunal is required for the consummation of the transactions contemplated by this Agreement or the Prospectus in connection with the issuance and sale of the Offered Certificates. Neither the NovaStar Entities nor any of their affiliates is a party to, bound by or in breach or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities or any of their affiliates, which materially and adversely affects, or may in the future materially and adversely affect, (i) the ability of the NovaStar Entities to perform their obligations under the Agreements or (ii) the business, operations, results of operations, financial position, income, properties or assets of the NovaStar Entities. F. This Agreement has been duly executed and delivered by the Seller and the Company, and the other Agreements will be duly executed and delivered by the NovaStar Entities, and each constitutes and will constitute the legal, valid and binding obligation of each of the NovaStar Entities enforceable in accordance with their respective terms, except as enforceability may be limited by (i) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (ii) general principles of equity, whether enforcement is sought in a proceeding at law or in equity. G. The Offered Certificates will conform in all material respects to the description thereof to be contained in the Prospectus and will be duly and validly authorized and, when duly and validly executed, authenticated, issued and delivered in accordance with the Pooling and Servicing Agreement and sold to the Underwriters as provided herein, will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement. H. On the Closing Date, the Initial Mortgage Loans ~~and the Additional Mortgage Loans~~ will conform in all material respects to the description thereof contained in the Prospectus and the representations and warranties contained in this Agreement will be true and correct in all material respects. On each Subsequent Transfer Date, the Subsequent Mortgage Loans will conform to the criteria set forth in the Prospectus Supplement. The representations and warranties of the Seller and the Company set out in the Pooling and Servicing Agreement are hereby made to the Underwriters as though set out herein, and at the dates specified therein, such representations and warranties were or will be true and correct in all material respects. I. The NovaStar Entities possess all material licenses, certificates, permits or other authorizations issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by it and as described in the Prospectus and there are no proceedings, pending or, to the best knowledge of the Seller and the Company, threatened, relating to the revocation or modification of any such license, certificate, permit or other authorization which singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect the business, operations, results of operations, financial position, income, property or assets of the NovaStar Entities. J. Any taxes, fees and other governmental charges in connection with the execution and delivery of the Agreements or the execution and issuance of the Offered Certificates have been or will be paid at or prior to the Closing Date. K. There has not been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the NovaStar Entities or their affiliates, taken as a whole, from ~~March 31~~June 30, 2002. L. The Agreements will conform in all material respects to the descriptions thereof, if any, contained in the Prospectus. M. Neither the Seller nor the Company is aware of (i) any request by the Commission for any further amendment of the Registration Statement or the Prospectus or for any additional information; (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose; or (iii) any notification with respect to the suspension of the qualification of the Offered Certificates for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Novastar Mortgage Funding Corp Trust Series 2002-3)

Representations and Warranties of the Seller and the Company. The Seller and the Company represent and warrant to, and covenant with, the Underwriters that: A. The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement (No. 333-~~84328~~50290) on Form S-3 for the registration under the Securities Act of 1933, as amended (the "Act"), of asset backed securities (issuable in series), which registration statement, as amended at the date hereof, has become effective. Such registration statement, as amended to the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the Act and complies in all other material respects with such Rule. The Company proposes to file with the Commission pursuant to Rule 424(b)(2) under the Act a supplement dated the date hereof to the prospectus dated March 13, 2002 relating to the Offered Certificates and the method of distribution thereof and has previously advised the Underwriters of all further information (financial and other) with respect to the Offered Certificates to be set forth therein. Such registration statement, including the exhibits thereto, as amended at the date hereof, is hereinafter called the "Registration Statement"; such prospectus dated March 13, 2002, in the form in which it will be filed with the Commission pursuant to Rule 424(b)(2) under the Act is hereinafter called the "Basic Prospectus"; such supplement dated the date hereof to the Basic Prospectus, in the form in which it will be filed with the Commission pursuant to Rule 424(b)(2) of the Act, is hereinafter called the "Prospectus Supplement"; and the Basic Prospectus and the Prospectus Supplement together are hereinafter called the "Prospectus." Any preliminary form of the Prospectus Supplement which has heretofore been filed pursuant to Rule 424 is hereinafter called a "Preliminary Prospectus Supplement." The Company will file with the Commission within fifteen days of the issuance of the Certificates a report on Form 8-K setting forth specific information concerning the related Mortgage Loans (the "8-K"). B. As of the date hereof, when the Registration Statement became effective, when the Prospectus Supplement is first filed pursuant to Rule 424(b)(2) under the Act, when, prior to the Closing Date (as defined below), any other amendment to the Registration Statement becomes effective, and when any supplement to the Prospectus is filed with the Commission, and at the Closing Date, (i) the Registration Statement, as amended as of any such time, and the Prospectus, as amended or supplemented as of any such time, will comply in all material respects with the applicable requirements of the Act and the rules thereunder and (ii) the Registration Statement, as amended as of any such time, did not and will not contain any untrue statement of a material fact and did not and will not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus, as amended or supplemented as of any such time, did not and will not contain an untrue statement of a material fact and did not and will not omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that neither the Seller nor the Company makes any representation or warranty as to the information contained in or omitted from the Registration Statement or the Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with the Underwriter Information. C. Each of the Seller, the Company, NFI, NovaStar Capital, Inc. (the "Converted Loan Purchaser") and NovaStar REMIC Financing Corporation ("NRFC") (collectively, the "NovaStar Entities") is duly organized, validly existing and in good standing under the laws of the state of its respective incorporation, has full power and authority (corporate and other) to own its properties and conduct its business as now conducted by it, and as described in the Prospectus, and is duly qualified to do business in each jurisdiction in which it conducts business (to the extent such qualification is required by applicable law) or in which the conduct of its business requires such qualification except where the failure to be so qualified does not involve (i) a material risk to, or a material adverse effect on, the business, properties, financial position, operations or results of operations of such entity or (ii) any risk whatsoever as to the enforceability of any Mortgage Loan. D. There are no actions, proceedings or investigations pending, or, to the knowledge of the Seller or the Company, threatened, before any court, governmental agency or body or other tribunal: (i) asserting the invalidity of this Agreement, the Pooling and Servicing Agreement, each ISDA master agreement and related confirmation between Credit Suisse First Boston International and/or Xxxxxx Xxxxxxx Capital Services Inc. and the Novastar Entity party thereto, (the "Swap Agreements"), the assignment by the related Novstar Entity of each Swap Agreement (the "Assignment"), the interest rate cap agreement between the Trustee, on behalf of the Trust, and Citibank, N.A. New York (the "Cap Agreement"), the Mortgage Loan Purchase Agreement, dated as of ~~June~~ March 1, 2002 (the "Mortgage Loan Purchase Agreement"), between the Seller and the Company, the Converted Loan Purchase Agreement, dated as of ~~June~~ March 1, 2002 (the "Converted Loan Purchase Agreement"), among the Seller, as Servicer and as Originator, the Converted Loan Purchaser and the Trustee, and the REMIC Interests Sale Agreement, dated as of ~~June~~ March 1, 2002 (the "REMIC Sale Agreement," and collectively, the "Agreements") between the Company and NRFC, or the Offered Certificates; (ii) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by the Agreements; (iii) which may, individually or in the aggregate, materially and adversely affect the performance by the NovaStar Entities of their respective obligations under, or the validity or enforceability of, the Agreements or the Certificates; or (iv) which may affect adversely the federal income tax attributes of the Offered Certificates as described in the Prospectus. E. The execution and delivery by the NovaStar Entities of the Agreements are within their respective corporate power and have been, or will be, prior to the Closing Date duly authorized by all necessary corporate action on the part of the NovaStar Entities and the execution and delivery of such instruments, the consummation of the transactions therein contemplated and compliance with the provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute or any agreement or instrument to which the NovaStar Entities or any of their affiliates is a party or by which it or any of them is bound or to which any of the property of the NovaStar Entities or any of their affiliates is subject, the NovaStar Entities' charter or bylaws, or any order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities, any of their affiliates or any of their properties; and no consent, approval, authorization or order of, or filing with, any court or governmental agency or body or other tribunal is required for the consummation of the transactions contemplated by this Agreement or the Prospectus in connection with the issuance and sale of the Offered Certificates. Neither the NovaStar Entities nor any of their affiliates is a party to, bound by or in breach or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities or any of their affiliates, which materially and adversely affects, or may in the future materially and adversely affect, (i) the ability of the NovaStar Entities to perform their obligations under the Agreements or (ii) the business, operations, results of operations, financial position, income, properties or assets of the NovaStar Entities. F. This Agreement has been duly executed and delivered by the Seller and the Company, and the other Agreements will be duly executed and delivered by the NovaStar Entities, and each constitutes and will constitute the legal, valid and binding obligation of each of the NovaStar Entities enforceable in accordance with their respective terms, except as enforceability may be limited by (i) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (ii) general principles of equity, whether enforcement is sought in a proceeding at law or in equity. G. The Offered Certificates will conform in all material respects to the description thereof to be contained in the Prospectus and will be duly and validly authorized and, when duly and validly executed, authenticated, issued and delivered in accordance with the Pooling and Servicing Agreement and sold to the Underwriters as provided herein, will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement. H. On the Closing Date, the Initial Mortgage Loans and the Additional Mortgage Loans will conform in all material respects to the description thereof contained in the Prospectus and the representations and warranties contained in this Agreement will be true and correct in all material respects. On each Subsequent Transfer Date, the Subsequent Mortgage Loans will conform to the criteria set forth in the Prospectus Supplement. The representations and warranties of the Seller and the Company set out in the Pooling and Servicing Agreement are hereby made to the Underwriters as though set out herein, and at the dates specified therein, such representations and warranties were or will be true and correct in all material respects. I. The NovaStar Entities possess all material licenses, certificates, permits or other authorizations issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by it and as described in the Prospectus and there are no proceedings, pending or, to the best knowledge of the Seller and the Company, threatened, relating to the revocation or modification of any such license, certificate, permit or other authorization which singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect the business, operations, results of operations, financial position, income, property or assets of the NovaStar Entities. J. Any taxes, fees and other governmental charges in connection with the execution and delivery of the Agreements or the execution and issuance of the Offered Certificates have been or will be paid at or prior to the Closing Date. K. There has not been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the NovaStar Entities or their affiliates, taken as a whole, from ~~March 31~~September 30, ~~2002~~2001. L. The Agreements will conform in all material respects to the descriptions thereof, if any, contained in the Prospectus. M. Neither the Seller nor the Company is aware of (i) any request by the Commission for any further amendment of the Registration Statement or the Prospectus or for any additional information; (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose; or (iii) any notification with respect to the suspension of the qualification of the Offered Certificates for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Novastar Mortgage Funding Trust Series 2002-1)

Representations and Warranties of the Seller and the Company. The Seller and the Company represent and warrant to, and covenant with, the Underwriters that: A. The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement (No. 333-~~84328~~102282) on Form S-3 for the registration under the Securities Act of 1933, as amended (the "Act"), of asset backed securities (issuable in series), which registration statement, as amended at the date hereof, has become effective. Such registration statement, as amended to the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the Act and complies in all other material respects with such Rule. The Company proposes to file with the Commission pursuant to Rule 424(b)(2) under the Act a supplement dated the date hereof to the prospectus dated ~~March 13~~February 24, ~~2002~~ 2003 relating to the Offered Certificates and the method of distribution thereof and has previously advised the Underwriters of all further information (financial and other) with respect to the Offered Certificates to be set forth therein. Such registration statement, including the exhibits thereto, as amended at the date hereof, is hereinafter called the "Registration Statement"; such prospectus dated ~~March 13~~February 24, ~~2002~~2003, in the form in which it will be filed with the Commission pursuant to Rule 424(b)(2) under the Act is hereinafter called the "Basic Prospectus"; such supplement dated the date hereof to the Basic Prospectus, in the form in which it will be filed with the Commission pursuant to Rule 424(b)(2) of the Act, is hereinafter called the "Prospectus Supplement"; and the Basic Prospectus and the Prospectus Supplement together are hereinafter called the "Prospectus." Any preliminary form of the Prospectus Supplement which has heretofore been filed pursuant to Rule 424 is hereinafter called a "Preliminary Prospectus Supplement." The Company will file with the Commission within fifteen days of the issuance of the Certificates a report on Form 8-K setting forth specific information concerning the related Mortgage Loans (the "8-K"). B. As of the date hereof, when the Registration Statement became effective, when the Prospectus Supplement is first filed pursuant to Rule 424(b)(2) under the Act, when, prior to the Closing Date (as defined below), any other amendment to the Registration Statement becomes effective, and when any supplement to the Prospectus is filed with the Commission, and at the Closing Date, (i) the Registration Statement, as amended as of any such time, and the Prospectus, as amended or supplemented as of any such time, will comply in all material respects with the applicable requirements of the Act and the rules thereunder and (ii) the Registration Statement, as amended as of any such time, did not and will not contain any untrue statement of a material fact and did not and will not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus, as amended or supplemented as of any such time, did not and will not contain an untrue statement of a material fact and did not and will not omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that neither the Seller nor the Company makes any representation or warranty as to the information contained in or omitted from the Registration Statement or the Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with the Underwriter Information. C. Each of the Seller, the Company, NFI, NovaStar Capital, Inc. (the "Converted Loan Purchaser") and NovaStar REMIC Financing Corporation ("NRFC") (collectively, the "NovaStar Entities") is duly organized, validly existing and in good standing under the laws of the state of its respective incorporation, has full power and authority (corporate and other) to own its properties and conduct its business as now conducted by it, and as described in the Prospectus, and is duly qualified to do business in each jurisdiction in which it conducts business (to the extent such qualification is required by applicable law) or in which the conduct of its business requires such qualification except where the failure to be so qualified does not involve (i) a material risk to, or a material adverse effect on, the business, properties, financial position, operations or results of operations of such entity or (ii) any risk whatsoever as to the enforceability of any Mortgage Loan. D. There are no actions, proceedings or investigations pending, or, to the knowledge of the Seller or the Company, threatened, before any court, governmental agency or body or other tribunal: (i) asserting the invalidity of this Agreement, the Pooling and Servicing Agreement, each ISDA master agreement and related confirmation between ~~Credit Suisse First Boston International and/or~~ Xxxxxx Xxxxxxx Capital Services Inc. and the ~~Novastar~~ related NovaStar Entity that is a party thereto, (the "Swap Agreements"), the assignment by the related ~~Novstar~~ NovaStar Entity of each Swap Agreement (the "Assignment~~"), the interest rate cap agreement between the Trustee, on behalf of the Trust, and Citibank, N.A. New York (the "Cap Agreement~~"), the Mortgage Loan Purchase Agreement, dated as of June 1, ~~2002~~ 2003 (the "Mortgage Loan Purchase Agreement"), between the Seller and the Company, the Converted Loan Purchase Agreement, dated as of June 1, ~~2002~~ 2003 (the "Converted Loan Purchase Agreement"), among the Seller, as Servicer and as Originator, the Converted Loan Purchaser and the Trustee, and the REMIC Interests Sale Agreement, dated as of June 1, ~~2002~~ 2003 (the "REMIC Sale Agreement," and collectively, the "Agreements") between the Company and NRFC, or the Offered Certificates; (ii) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by the Agreements; (iii) which may, individually or in the aggregate, materially and adversely affect the performance by the NovaStar Entities of their respective obligations under, or the validity or enforceability of, the Agreements or the Certificates; or (iv) which may affect adversely the federal income tax attributes of the Offered Certificates as described in the Prospectus. E. The execution and delivery by the NovaStar Entities of the Agreements are within their respective corporate power and have been, or will be, prior to the Closing Date duly authorized by all necessary corporate action on the part of the NovaStar Entities and the execution and delivery of such instruments, the consummation of the transactions therein contemplated and compliance with the provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute or any agreement or instrument to which the NovaStar Entities or any of their affiliates is a party or by which it or any of them is bound or to which any of the property of the NovaStar Entities or any of their affiliates is subject, the NovaStar Entities' charter or bylaws, or any order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities, any of their affiliates or any of their properties; and no consent, approval, authorization or order of, or filing with, any court or governmental agency or body or other tribunal is required for the consummation of the transactions contemplated by this Agreement or the Prospectus in connection with the issuance and sale of the Offered Certificates. Neither the NovaStar Entities nor any of their affiliates is a party to, bound by or in breach or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities or any of their affiliates, which materially and adversely affects, or may in the future materially and adversely affect, (i) the ability of the NovaStar Entities to perform their obligations under the Agreements or (ii) the business, operations, results of operations, financial position, income, properties or assets of the NovaStar Entities. F. This Agreement has been duly executed and delivered by the Seller and the Company, and the other Agreements will be duly executed and delivered by the NovaStar Entities, and each constitutes and will constitute the legal, valid and binding obligation of each of the NovaStar Entities enforceable in accordance with their respective terms, except as enforceability may be limited by (i) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (ii) general principles of equity, whether enforcement is sought in a proceeding at law or in equity. G. The Offered Certificates will conform in all material respects to the description thereof to be contained in the Prospectus and will be duly and validly authorized and, when duly and validly executed, authenticated, issued and delivered in accordance with the Pooling and Servicing Agreement and sold to the Underwriters as provided herein, will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement. H. On the Closing Date, the Initial Mortgage Loans ~~and the Additional Mortgage Loans~~ will conform in all material respects to the description thereof contained in the Prospectus and the representations and warranties contained in this Agreement will be true and correct in all material respects. On each Subsequent Transfer Date, the Subsequent Mortgage Loans will conform to the criteria set forth in the Prospectus Supplement. The representations and warranties of the Seller and the Company set out in the Pooling and Servicing Agreement are hereby made to the Underwriters as though set out herein, and at the dates specified therein, such representations and warranties were or will be true and correct in all material respects. I. The NovaStar Entities possess all material licenses, certificates, permits or other authorizations issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by it and as described in the Prospectus and there are no ~~proceedings,~~ proceedings pending or, to the best knowledge of the Seller and the Company, threatened, relating to the revocation or modification of any such license, certificate, permit or other authorization which singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect the business, operations, results of operations, financial position, income, property or assets of the NovaStar Entities. J. Any taxes, fees and other governmental charges in connection with the execution and delivery of the Agreements or the execution and issuance of the Offered Certificates have been or will be paid at or prior to the Closing Date. K. There has not been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the NovaStar Entities or their affiliates, taken as a whole, from March 31, ~~2002~~2003. L. The Agreements will conform in all material respects to the descriptions thereof, if any, contained in the Prospectus. M. Neither the Seller nor the Company is aware of (i) any request by the Commission for any further amendment of the Registration Statement or the Prospectus or for any additional information; (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose; or (iii) any notification with respect to the suspension of the qualification of the Offered Certificates for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.

Appears in 1 contract

Samples: Asset Sale Agreement (Novastar Mortgage Funding Corp Home Eq Ln as Bk Ce Se 03 2)

Representations and Warranties of the Seller and the Company. The Seller and the Company represent and warrant to, and covenant with, the Underwriters that: A. The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement (No. 333-~~84328~~50290) on Form S-3 for the registration under the Securities Act of 1933, as amended (the "Act"), of asset backed securities (issuable in series), which registration statement, as amended at the date hereof, has become effective. Such registration statement, as amended to the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the Act and complies in all other material respects with such Rule. The Company proposes to file with the Commission pursuant to Rule 424(b)(2) under the Act a supplement dated the date hereof to the prospectus dated ~~March 13~~February 16, ~~2002~~ 2001 relating to the Offered Certificates and the method of distribution thereof and has previously advised the Underwriters of all further information (financial and other) with respect to the Offered Certificates to be set forth therein. Such registration statement, including the exhibits thereto, as amended at the date hereof, is hereinafter called the "Registration Statement"; such prospectus dated ~~March 13~~February 16, ~~2002~~2001, in the form in which it will be filed with the Commission pursuant to Rule 424(b)(2) under the Act is hereinafter called the "Basic Prospectus"; such supplement dated the date hereof to the Basic Prospectus, in the form in which it will be filed with the Commission pursuant to Rule 424(b)(2) of the Act, is hereinafter called the "Prospectus Supplement"; and the Basic Prospectus and the Prospectus Supplement together are hereinafter called the "Prospectus." Any preliminary form of the Prospectus Supplement which has heretofore been filed pursuant to Rule 424 is hereinafter called a "Preliminary Prospectus Supplement." The Company will file with the Commission within fifteen days of the issuance of the Certificates a report on Form 8-K setting forth specific information concerning the related Mortgage Loans (the "8-K"). B. As of the date hereof, when the Registration Statement became effective, when the Prospectus Supplement is first filed pursuant to Rule 424(b)(2) under the Act, when, prior to the Closing Date (as defined below), any other amendment to the Registration Statement becomes effective, and when any supplement to the Prospectus is filed with the Commission, and at the Closing Date, (i) the Registration Statement, as amended as of any such time, and the Prospectus, as amended or supplemented as of any such time, will comply in all material respects with the applicable requirements of the Act and the rules thereunder and (ii) the Registration Statement, as amended as of any such time, did not and will not contain any untrue statement of a material fact and did not and will not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus, as amended or supplemented as of any such time, did not and will not contain an untrue statement of a material fact and did not and will not omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that neither the Seller nor the Company makes any representation or warranty as to the information contained in or omitted from the Registration Statement or the Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with the Underwriter Information. C. Each of the Seller, the Company, NFI, NovaStar Capital, Inc. (the "Converted Loan Purchaser") and ~~NovaStar REMIC Financing Corporation ("NRFC")~~ NRFC (collectively, the "NovaStar Entities") is duly organized, validly existing and in good standing under the laws of the state of its respective incorporation, has full power and authority (corporate and other) to own its properties and conduct its business as now conducted by it, and as described in the Prospectus, and is duly qualified to do business in each jurisdiction in which it conducts business (to the extent such qualification is required by applicable law) or in which the conduct of its business requires such qualification except where the failure to be so qualified does not involve (i) a material risk to, or a material adverse effect on, the business, properties, financial position, operations or results of operations of such entity or (ii) any risk whatsoever as to the enforceability of any Mortgage Loan. D. There are no actions, proceedings or investigations pending, or, to the knowledge of the Seller or the Company, threatened, before any court, governmental agency or body or other tribunal: (i) asserting the invalidity of this Agreement, the Pooling and Servicing Agreement, each ISDA master agreement and related confirmation between Credit Suisse First Boston International and/or Xxxxxx Xxxxxxx Capital Services Inc. and the Novastar Entity party thereto, (the "Swap Agreements"), the assignment by the related Novstar Entity of each Swap Agreement (the "Assignment"), the interest rate cap agreement between the Trustee, on behalf of the Trust, and Citibank, N.A. New York (the "Cap Agreement"), the Mortgage Loan Purchase Agreement, dated as of ~~June~~ September 1, ~~2002~~ 2001 (the "Mortgage Loan Purchase Agreement"), between the Seller and the Company, the Converted Loan Purchase Agreement, dated as of ~~June~~ September 1, ~~2002~~ 2001 (the "Converted Loan Purchase Agreement"), among the Seller, as Servicer and as Originator, the Converted Loan Purchaser and the Trustee, and the REMIC Interests Sale Agreement, dated as of ~~June~~ September 1, ~~2002~~ 2001 (the "REMIC Sale Agreement," and collectively, the "Agreements") between the Company and NRFC, or the Offered Certificates; (ii) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by the Agreements; (iii) which may, individually or in the aggregate, materially and adversely affect the performance by the NovaStar Entities of their respective obligations under, or the validity or enforceability of, the Agreements or the Certificates; or (iv) which may affect adversely the federal income tax attributes of the Offered Certificates as described in the Prospectus. E. The execution and delivery by the NovaStar Entities of the Agreements are within their respective corporate power and have been, or will be, prior to the Closing Date duly authorized by all necessary corporate action on the part of the NovaStar Entities and the execution and delivery of such instruments, the consummation of the transactions therein contemplated and compliance with the provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute or any agreement or instrument to which the NovaStar Entities or any of their affiliates is a party or by which it or any of them is bound or to which any of the property of the NovaStar Entities or any of their affiliates is subject, the NovaStar Entities' charter or bylaws, or any order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities, any of their affiliates or any of their properties; and no consent, approval, authorization or order of, or filing with, any court or governmental agency or body or other tribunal is required for the consummation of the transactions contemplated by this Agreement or the Prospectus in connection with the issuance and sale of the Offered Certificates. Neither the NovaStar Entities nor any of their affiliates is a party to, bound by or in breach or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities or any of their affiliates, which materially and adversely affects, or may in the future materially and adversely affect, (i) the ability of the NovaStar Entities to perform their obligations under the Agreements or (ii) the business, operations, results of operations, financial position, income, properties or assets of the NovaStar Entities. F. This Agreement has been duly executed and delivered by the Seller and the Company, and the other Agreements will be duly executed and delivered by the NovaStar Entities, and each constitutes and will constitute the legal, valid and binding obligation of each of the NovaStar Entities enforceable in accordance with their respective terms, except as enforceability may be limited by (i) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (ii) general principles of equity, whether enforcement is sought in a proceeding at law or in equity. G. The Offered Certificates will conform in all material respects to the description thereof to be contained in the Prospectus and will be duly and validly authorized and, when duly and validly executed, authenticated, issued and delivered in accordance with the Pooling and Servicing Agreement and sold to the Underwriters as provided herein, will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement. H. On the Closing Date, the Initial Mortgage Loans ~~and the Additional Mortgage Loans~~ will conform in all material respects to the description thereof contained in the Prospectus and the representations and warranties contained in this Agreement will be true and correct in all material respects. On each Subsequent Transfer Date, the Subsequent Mortgage Loans will conform to the criteria set forth in the Prospectus Supplement. The representations and warranties of the Seller and the Company set out in the Pooling and Servicing Agreement are hereby made to the Underwriters as though set out herein, and at the dates specified therein, such representations and warranties were or will be true and correct in all material respects. I. The NovaStar Entities possess all material licenses, certificates, permits or other authorizations issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by it and as described in the Prospectus and there are no proceedings, pending or, to the best knowledge of the Seller and the Company, threatened, relating to the revocation or modification of any such license, certificate, permit or other authorization which singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect the business, operations, results of operations, financial position, income, property or assets of the NovaStar Entities. J. Any taxes, fees and other governmental charges in connection with the execution and delivery of the Agreements or the execution and issuance of the Offered Certificates have been or will be paid at or prior to the Closing Date. K. There has not been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the NovaStar Entities or their affiliates, taken as a whole, from ~~March 31~~June 30, ~~2002~~2001. L. The Agreements will conform in all material respects to the descriptions thereof, if any, contained in the Prospectus. M. Neither the Seller nor the Company is aware of (i) any request by the Commission for any further amendment of the Registration Statement or the Prospectus or for any additional information; (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose; or (iii) any notification with respect to the suspension of the qualification of the Offered Certificates for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Novastar Mortgage Funding Corp)

Representations and Warranties of the Seller and the Company. The Seller and the Company represent and warrant to, and covenant with, the Underwriters that: A. The Company has filed with the Securities and Exchange Commission (the "“Commission"”) a registration statement (No. 333-~~84328~~114297) on Form S-3 for the registration under the Securities Act of 1933, as amended (the "“Act"”), of asset backed securities (issuable in series), which registration statement, as amended at the date hereof, has become effective. Such registration statement, as amended to the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the Act and complies in all other material respects with such Rule. The Company proposes to file with the Commission pursuant to Rule ~~424(b)(2~~424(b) under the Act a supplement dated the date hereof to the prospectus dated ~~March 13~~April 16, ~~2002~~ 2004 relating to the Offered Certificates and the method of distribution thereof and has previously advised the Underwriters of all further information (financial and other) with respect to the Offered Certificates to be set forth therein. Such registration statement, including the exhibits thereto, as amended at the date hereof, is hereinafter called the "“Registration Statement"”; such prospectus dated ~~March 13~~April 16, ~~2002~~2004, in the form in which it will be filed with the Commission pursuant to Rule ~~424(b)(2~~424(b) under the Act is hereinafter called the "“Basic Prospectus"”; such supplement dated the date hereof to the Basic Prospectus, in the form in which it will be filed with the Commission pursuant to Rule ~~424(b)(2~~424(b) of the Act, is hereinafter called the "“Prospectus Supplement"”; and the Basic Prospectus and the Prospectus Supplement together are hereinafter called the "“Prospectus." ” Any preliminary form of the Prospectus Supplement which has heretofore been filed pursuant to Rule 424 is hereinafter called a "“Preliminary Prospectus Supplement." ” The Company will file with the Commission within fifteen days of the issuance of the Certificates a report on Form 8-K setting forth specific information concerning the related Mortgage Loans (the "“8-K"”). B. As of the date hereof, when the Registration Statement became effective, when the Prospectus Supplement is first filed pursuant to Rule ~~424(b)(2~~424(b) under the Act, when, prior to the Closing Date (as defined below), any other amendment to the Registration Statement becomes effective, and when any supplement to the Prospectus is filed with the Commission, and at the Closing Date, (i) the Registration Statement, as amended as of any such time, and the Prospectus, as amended or supplemented as of any such time, will comply in all material respects with the applicable requirements of the Act and the rules thereunder and (ii) the Registration Statement, as amended as of any such time, did not and will not contain any untrue statement of a material fact and did not and will not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus, as amended or supplemented as of any such time, did not and will not contain an untrue statement of a material fact and did not and will not omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that neither the Seller nor the Company makes any representation or warranty as to the information contained in or omitted from the Registration Statement or the Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with the Underwriter Information. C. Each of the Seller, the Company, ~~NFI, NovaStar Capital, Inc. (the "Converted Loan Purchaser")~~ NFI and NovaStar REMIC Financing Corporation ("“NRFC"”) (collectively, the "“NovaStar Entities"”) is duly organized, validly existing and in good standing under the laws of the state of its respective incorporation, has full power and authority (corporate and other) to own its properties and conduct its business as now conducted by it, and as described in the Prospectus, and is duly qualified to do business in each jurisdiction in which it conducts business (to the extent such qualification is required by applicable law) or in which the conduct of its business requires such qualification except where the failure to be so qualified does not involve (i) a material risk to, or a material adverse effect on, the business, properties, financial position, operations or results of operations of such entity or (ii) any risk whatsoever as to the enforceability of any Mortgage Loan. D. There are no actions, proceedings or investigations pending, or, to the knowledge of the Seller or the Company, threatened, before any court, governmental agency or body or other tribunal: (i) asserting the invalidity of this Agreement, the Pooling and Servicing Agreement, each ISDA master agreement and related confirmation between ~~Credit Suisse First Boston International and/or Xxxxxx Xxxxxxx~~ Greenwich Capital ~~Services~~ Derivatives, Inc. or Wachovia Bank, N.A. and the ~~Novastar~~ related NovaStar Entity that is a party thereto, (the "“Swap Agreements"”), the assignment by the related ~~Novstar~~ NovaStar Entity of each Swap Agreement (the "“Assignment~~"), the interest rate cap agreement between the Trustee, on behalf of the Trust, and Citibank, N.A. New York (the "Cap Agreement"~~”), the Mortgage Loan Purchase Agreement, dated as of ~~June~~ November 1, ~~2002~~ 2004 (the "“Mortgage Loan Purchase Agreement"”), between the Seller and the Company, the Converted Loan Purchase Agreement, dated as of June 1, 2002 (the "Converted Loan Purchase Agreement"), among the Seller, as Servicer and as Originator, the Converted Loan Purchaser and the Trustee, Company and the REMIC Interests Sale Agreement, dated as of ~~June~~ November 1, ~~2002~~ 2004 (the "“REMIC Sale Agreement," ” and collectively, the "“Agreements"”) between the Company and NRFC, or the Offered Certificates; (ii) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by the Agreements; (iii) which may, individually or in the aggregate, materially and adversely affect the performance by the NovaStar Entities of their respective obligations under, or the validity or enforceability of, the Agreements or the Certificates; or (iv) which may affect adversely the federal income tax attributes of the Offered Certificates as described in the Prospectus. E. The execution and delivery by the NovaStar Entities of the Agreements are within their respective corporate power and have been, or will be, prior to the Closing Date duly authorized by all necessary corporate action on the part of the NovaStar Entities and the execution and delivery of such instruments, the consummation of the transactions therein contemplated and compliance with the provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute or any agreement or instrument to which the NovaStar Entities or any of their affiliates is a party or by which it or any of them is bound or to which any of the property of the NovaStar Entities or any of their affiliates is subject, the NovaStar Entities' ’ charter or bylaws, or any order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities, any of their affiliates or any of their properties; and no consent, approval, authorization or order of, or filing with, any court or governmental agency or body or other tribunal is required for the consummation of the transactions contemplated by this Agreement or the Prospectus in connection with the issuance and sale of the Offered Certificates. Neither the NovaStar Entities nor any of their affiliates is a party to, bound by or in breach or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities or any of their affiliates, which materially and adversely affects, or may in the future materially and adversely affect, (i) the ability of the NovaStar Entities to perform their obligations under the Agreements or (ii) the business, operations, results of operations, financial position, income, properties or assets of the NovaStar Entities. F. This Agreement has been duly executed and delivered by the Seller and the Company, and the other Agreements will be duly executed and delivered by the NovaStar Entities, and each constitutes and will constitute the legal, valid and binding obligation of each of the NovaStar Entities enforceable in accordance with their respective terms, except as enforceability may be limited by (i) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (ii) general principles of equity, whether enforcement is sought in a proceeding at law or in equity. G. The Offered Certificates will conform in all material respects to the description thereof to be contained in the Prospectus and will be duly and validly authorized and, when duly and validly executed, authenticated, issued and delivered in accordance with the Pooling and Servicing Agreement and sold to the Underwriters as provided herein, will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement. H. On the Closing Date, the ~~Initial Mortgage Loans and the Additional~~ Closing Date Mortgage Loans will conform in all material respects to the description thereof contained in the Prospectus and the representations and warranties contained in this Agreement will be true and correct in all material respects. On each Subsequent Transfer Date, the Subsequent Mortgage Loans will conform to the criteria set forth in the Prospectus Supplement. The representations and warranties of the Seller and the Company set out in the Pooling and Servicing Agreement are hereby made to the Underwriters as though set out herein, and at the dates specified therein, such representations and warranties were or will be true and correct in all material respects. I. The NovaStar Entities possess all material licenses, certificates, permits or other authorizations issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by it and as described in the Prospectus and there are no ~~proceedings,~~ proceedings pending or, to the best knowledge of the Seller and the Company, threatened, relating to the revocation or modification of any such license, certificate, permit or other authorization which singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect the business, operations, results of operations, financial position, income, property or assets of the NovaStar Entities. J. Any taxes, fees and other governmental charges in connection with the execution and delivery of the Agreements or the execution and issuance of the Offered Certificates have been or will be paid at or prior to the Closing Date. K. There has not been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the NovaStar Entities or their affiliates, taken as a whole, from ~~March 31~~September 30, ~~2002~~2004. L. The Agreements will conform in all material respects to the descriptions thereof, if any, contained in the Prospectus. M. Neither the Company nor the Trust created by the Pooling and Servicing Agreement is an “investment company” within the meaning of such term under the Investment Company Act of 1940 (the “1940 Act”) and the rules and regulations of the Commission thereunder. The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended. N. Neither the Seller nor the Company is aware of (i) any request by the Commission for any further amendment of the Registration Statement or the Prospectus or for any additional information; (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose; or (iii) any notification with respect to the suspension of the qualification of the Offered Certificates for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.

Appears in 1 contract

Samples: Underwriting Agreement (NovaStar Mortgage Funding Trust, Series 2004-4)

Representations and Warranties of the Seller and the Company. The Seller and the Company represent and warrant to, and covenant with, the Underwriters that: A. The Company has filed with the Securities and Exchange Commission (the "“Commission"”) a registration statement (No. 333-~~84328~~121066) on Form S-3 for the registration under the Securities Act of 1933, as amended (the "“Act"”), of asset backed securities (issuable in series), which registration statement, as amended at the date hereof, has become effective. Such registration statement, as amended to the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the Act and complies in all other material respects with such Rule. The Company proposes to file with the Commission pursuant to Rule ~~424(b)(2~~424(b) under the Act a supplement dated the date hereof to the prospectus dated ~~March 13~~December 27, ~~2002~~ 2004 relating to the Offered Certificates and the method of distribution thereof and has previously advised the Underwriters of all further information (financial and other) with respect to the Offered Certificates to be set forth therein. Such registration statement, including the exhibits thereto, as amended at the date hereof, is hereinafter called the "“Registration Statement"”; such prospectus dated ~~March 13~~December 27, ~~2002~~2004, in the form in which it will be filed with the Commission pursuant to Rule ~~424(b)(2~~424(b) under the Act is hereinafter called the "“Basic Prospectus"”; such supplement dated the date hereof to the Basic Prospectus, in the form in which it will be filed with the Commission pursuant to Rule ~~424(b)(2~~424(b) of the Act, is hereinafter called the "“Prospectus Supplement"”; and the Basic Prospectus and the Prospectus Supplement together are hereinafter called the "“Prospectus." ” Any preliminary form of the Prospectus Supplement which has heretofore been filed pursuant to Rule 424 is hereinafter called a "“Preliminary Prospectus Supplement." ” The Company will file with the Commission within fifteen days of the issuance of the Certificates a report on Form 8-K setting forth specific information concerning the related Mortgage Loans (the "“8-K"”). B. As of the date hereof, when the Registration Statement became effective, when the Prospectus Supplement is first filed pursuant to Rule ~~424(b)(2~~424(b) under the Act, when, prior to the Closing Date (as defined below), any other amendment to the Registration Statement becomes effective, and when any supplement to the Prospectus is filed with the Commission, and at the Closing Date, (i) the Registration Statement, as amended as of any such time, and the Prospectus, as amended or supplemented as of any such time, will comply in all material respects with the applicable requirements of the Act and the rules thereunder and (ii) the Registration Statement, as amended as of any such time, did not and will not contain any untrue statement of a material fact and did not and will not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus, as amended or supplemented as of any such time, did not and will not contain an untrue statement of a material fact and did not and will not omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that neither the Seller nor the Company makes any representation or warranty as to the information contained in or omitted from the Registration Statement or the Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with the Underwriter Information. C. Each of the Seller, the Company, ~~NFI, NovaStar Capital, Inc. (the "Converted Loan Purchaser")~~ NFI and NovaStar REMIC Financing Corporation ("“NRFC"”) (collectively, the "“NovaStar Entities"”) is duly organized, validly existing and in good standing under the laws of the state of its respective incorporation, has full power and authority (corporate and other) to own its properties and conduct its business as now conducted by it, and as described in the Prospectus, and is duly qualified to do business in each jurisdiction in which it conducts business (to the extent such qualification is required by applicable law) or in which the conduct of its business requires such qualification except where the failure to be so qualified does not involve (i) a material risk to, or a material adverse effect on, the business, properties, financial position, operations or results of operations of such entity or (ii) any risk whatsoever as to the enforceability of any Mortgage Loan. D. There are no actions, proceedings or investigations pending, or, to the knowledge of the Seller or the Company, threatened, before any court, governmental agency or body or other tribunal: (i) asserting the invalidity of this Agreement, the Pooling and Servicing Agreement, each ISDA master agreement and related confirmation between ~~Credit Suisse First Boston International and/or Xxxxxx Xxxxxxx~~ Greenwich Capital ~~Services Inc.~~ Derivatives, Inc., Wachovia Bank, N.A. or Deutsche Bank AG and the ~~Novastar~~ related NovaStar Entity that is a party thereto, (the "“Swap Agreements"”), the assignment by the related ~~Novstar~~ NovaStar Entity of each Swap Agreement (the "“Assignment~~"), the interest rate cap agreement between the Trustee, on behalf of the Trust, and Citibank, N.A. New York (the "Cap Agreement"~~”), the Mortgage Loan Purchase Agreement, dated as of ~~June~~ February 1, ~~2002~~ 2005 (the "“Mortgage Loan Purchase Agreement"”), between the Seller and the Company, the Converted Loan Purchase Agreement, dated as of June 1, 2002 (the "Converted Loan Purchase Agreement"), among the Seller, as Servicer and as Originator, the Converted Loan Purchaser and the Trustee, Company and the REMIC Interests Sale Agreement, dated as of ~~June~~ February 1, ~~2002~~ 2005 (the "“REMIC Sale Agreement," ” and collectively, the "“Agreements"”) between the Company and NRFC, or the Offered Certificates; (ii) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by the Agreements; (iii) which may, individually or in the aggregate, materially and adversely affect the performance by the NovaStar Entities of their respective obligations under, or the validity or enforceability of, the Agreements or the Certificates; or (iv) which may affect adversely the federal income tax attributes of the Offered Certificates as described in the Prospectus. E. The execution and delivery by the NovaStar Entities of the Agreements are within their respective corporate power and have been, or will be, prior to the Closing Date duly authorized by all necessary corporate action on the part of the NovaStar Entities and the execution and delivery of such instruments, the consummation of the transactions therein contemplated and compliance with the provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute or any agreement or instrument to which the NovaStar Entities or any of their affiliates is a party or by which it or any of them is bound or to which any of the property of the NovaStar Entities or any of their affiliates is subject, the NovaStar Entities' ’ charter or bylaws, or any order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities, any of their affiliates or any of their properties; and no consent, approval, authorization or order of, or filing with, any court or governmental agency or body or other tribunal is required for the consummation of the transactions contemplated by this Agreement or the Prospectus in connection with the issuance and sale of the Offered Certificates. Neither the NovaStar Entities nor any of their affiliates is a party to, bound by or in breach or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities or any of their affiliates, which materially and adversely affects, or may in the future materially and adversely affect, (i) the ability of the NovaStar Entities to perform their obligations under the Agreements or (ii) the business, operations, results of operations, financial position, income, properties or assets of the NovaStar Entities. F. This Agreement has been duly executed and delivered by the Seller and the Company, and the other Agreements will be duly executed and delivered by the NovaStar Entities, and each constitutes and will constitute the legal, valid and binding obligation of each of the NovaStar Entities enforceable in accordance with their respective terms, except as enforceability may be limited by (i) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (ii) general principles of equity, whether enforcement is sought in a proceeding at law or in equity. G. The Offered Certificates will conform in all material respects to the description thereof to be contained in the Prospectus and will be duly and validly authorized and, when duly and validly executed, authenticated, issued and delivered in accordance with the Pooling and Servicing Agreement and sold to the Underwriters as provided herein, will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement. H. On the Closing Date, the ~~Initial Mortgage Loans and the Additional~~ Closing Date Mortgage Loans will conform in all material respects to the description thereof contained in the Prospectus and the representations and warranties contained in this Agreement will be true and correct in all material respects. On each Subsequent Transfer Date, the Subsequent Mortgage Loans will conform to the criteria set forth in the Prospectus Supplement. The representations and warranties of the Seller and the Company set out in the Pooling and Servicing Agreement are hereby made to the Underwriters as though set out herein, and at the dates specified therein, such representations and warranties were or will be true and correct in all material respects. I. The NovaStar Entities possess all material licenses, certificates, permits or other authorizations issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by it and as described in the Prospectus and there are no ~~proceedings,~~ proceedings pending or, to the best knowledge of the Seller and the Company, threatened, relating to the revocation or modification of any such license, certificate, permit or other authorization which singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect the business, operations, results of operations, financial position, income, property or assets of the NovaStar Entities. J. Any taxes, fees and other governmental charges in connection with the execution and delivery of the Agreements or the execution and issuance of the Offered Certificates have been or will be paid at or prior to the Closing Date. K. There has not been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the NovaStar Entities or their affiliates, taken as a whole, from ~~March 31~~September 30, ~~2002~~2004. L. The Agreements will conform in all material respects to the descriptions thereof, if any, contained in the Prospectus. M. Neither the Company nor the Trust created by the Pooling and Servicing Agreement is an “investment company” within the meaning of such term under the Investment Company Act of 1940 (the “1940 Act”) and the rules and regulations of the Commission thereunder. The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended. N. Neither the Seller nor the Company is aware of (i) any request by the Commission for any further amendment of the Registration Statement or the Prospectus or for any additional information; (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose; or (iii) any notification with respect to the suspension of the qualification of the Offered Certificates for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.

Appears in 1 contract

Samples: Asset Sale Agreement (NovaStar Mortgage Funding Trust, Series 2005-1)

Representations and Warranties of the Seller and the Company. The Seller and the Company represent and warrant to, and covenant with, the Underwriters that: A. The Company has filed with the Securities and Exchange Commission (the "“Commission"”) a registration statement (No. 333-~~84328~~121066) on Form S-3 for the registration under the Securities Act of 1933, as amended (the "“Act"”), of asset backed securities (issuable in series), which registration statement, as amended at the date hereof, has become effective. Such registration statement, as amended to the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the Act and complies in all other material respects with such Rule. The Company proposes to file with the Commission pursuant to Rule ~~424(b)(2~~424(b) under the Act a supplement dated the date hereof to the prospectus dated ~~March 13~~December 27, ~~2002~~ 2004 relating to the Offered Certificates and the method of distribution thereof and has previously advised the Underwriters of all further information (financial and other) with respect to the Offered Certificates to be set forth therein. Such registration statement, including the exhibits thereto, as amended at the date hereof, is hereinafter called the "“Registration Statement"”; such prospectus dated ~~March 13~~December 27, ~~2002~~2004, in the form in which it will be filed with the Commission pursuant to Rule ~~424(b)(2~~424(b) under the Act is hereinafter called the "“Basic Prospectus"”; such supplement dated the date hereof to the Basic Prospectus, in the form in which it will be filed with the Commission pursuant to Rule ~~424(b)(2~~424(b) of the Act, is hereinafter called the "“Prospectus Supplement"”; and the Basic Prospectus and the Prospectus Supplement together are hereinafter called the "“Prospectus." ” Any preliminary form of the Prospectus Supplement which has heretofore been filed pursuant to Rule 424 is hereinafter called a "“Preliminary Prospectus Supplement." ” The Company will file with the Commission within fifteen days of the issuance of the Certificates a report on Form 8-K setting forth specific information concerning the related Mortgage Loans (the "“8-K"”). B. As of the date hereof, when the Registration Statement became effective, when the Prospectus Supplement is first filed pursuant to Rule ~~424(b)(2~~424(b) under the Act, when, prior to the Closing Date (as defined below), any other amendment to the Registration Statement becomes effective, and when any supplement to the Prospectus is filed with the Commission, and at the Closing Date, (i) the Registration Statement, as amended as of any such time, and the Prospectus, as amended or supplemented as of any such time, will comply in all material respects with the applicable requirements of the Act and the rules thereunder and (ii) the Registration Statement, as amended as of any such time, did not and will not contain any untrue statement of a material fact and did not and will not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus, as amended or supplemented as of any such time, did not and will not contain an untrue statement of a material fact and did not and will not omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that neither the Seller nor the Company makes any representation or warranty as to the information contained in or omitted from the Registration Statement or the Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with the Underwriter Information. C. Each of the Seller, the Company, ~~NFI, NovaStar Capital, Inc. (the "Converted Loan Purchaser")~~ NFI and NovaStar REMIC Financing Corporation ("“NRFC"”) (collectively, the "“NovaStar Entities"”) is duly organized, validly existing and in good standing under the laws of the state of its respective incorporation, has full power and authority (corporate and other) to own its properties and conduct its business as now conducted by it, and as described in the Prospectus, and is duly qualified to do business in each jurisdiction in which it conducts business (to the extent such qualification is required by applicable law) or in which the conduct of its business requires such qualification except where the failure to be so qualified does not involve (i) a material risk to, or a material adverse effect on, the business, properties, financial position, operations or results of operations of such entity or (ii) any risk whatsoever as to the enforceability of any Mortgage Loan. D. There are no actions, proceedings or investigations pending, or, to the knowledge of the Seller or the Company, threatened, before any court, governmental agency or body or other tribunal: (i) asserting the invalidity of this Agreement, the Pooling and Servicing Agreement, each ISDA master agreement and related confirmation between ~~Credit Suisse First Boston International and/or Xxxxxx Xxxxxxx Capital Services Inc.~~ The Royal Bank of Scotland plc, Wachovia Bank, N.A. or Deutsche Bank AG and the ~~Novastar~~ related NovaStar Entity that is a party thereto, (the ~~"Swap~~ “Hedge Agreements"”), the assignment by the related ~~Novstar~~ NovaStar Entity of each ~~Swap~~ Hedge Agreement (the "“Assignment~~"), the interest rate cap agreement between the Trustee, on behalf of the Trust, and Citibank, N.A. New York (the "Cap Agreement"~~”), the Mortgage Loan Purchase Agreement, dated as of ~~June~~ September 1, ~~2002~~ 2005 (the "“Mortgage Loan Purchase Agreement"”), between the Seller and the Company, the Converted Loan Purchase Agreement, dated as of June 1, 2002 (the "Converted Loan Purchase Agreement"), among the Seller, as Servicer and as Originator, the Converted Loan Purchaser and the Trustee, Company and the REMIC Interests Sale Agreement, dated as of ~~June~~ September 1, ~~2002~~ 2005 (the "“REMIC Sale Agreement," ” and collectively, the "“Agreements"”) between the Company and NRFC, or the Offered Certificates; (ii) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by the Agreements; (iii) which may, individually or in the aggregate, materially and adversely affect the performance by the NovaStar Entities of their respective obligations under, or the validity or enforceability of, the Agreements or the Certificates; or (iv) which may affect adversely the federal income tax attributes of the Offered Certificates as described in the Prospectus. E. The execution and delivery by the NovaStar Entities of the Agreements are within their respective corporate power and have been, or will be, prior to the Closing Date duly authorized by all necessary corporate action on the part of the NovaStar Entities and the execution and delivery of such instruments, the consummation of the transactions therein contemplated and compliance with the provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute or any agreement or instrument to which the NovaStar Entities or any of their affiliates is a party or by which it or any of them is bound or to which any of the property of the NovaStar Entities or any of their affiliates is subject, the NovaStar Entities' ’ charter or bylaws, or any order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities, any of their affiliates or any of their properties; and no consent, approval, authorization or order of, or filing with, any court or governmental agency or body or other tribunal is required for the consummation of the transactions contemplated by this Agreement or the Prospectus in connection with the issuance and sale of the Offered Certificates. Neither the NovaStar Entities nor any of their affiliates is a party to, bound by or in breach or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities or any of their affiliates, which materially and adversely affects, or may in the future materially and adversely affect, (i) the ability of the NovaStar Entities to perform their obligations under the Agreements or (ii) the business, operations, results of operations, financial position, income, properties or assets of the NovaStar Entities. F. This Agreement has been duly executed and delivered by the Seller and the Company, and the other Agreements will be duly executed and delivered by the NovaStar Entities, and each constitutes and will constitute the legal, valid and binding obligation of each of the NovaStar Entities enforceable in accordance with their respective terms, except as enforceability may be limited by (i) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (ii) general principles of equity, whether enforcement is sought in a proceeding at law or in equity. G. The Offered Certificates will conform in all material respects to the description thereof to be contained in the Prospectus and will be duly and validly authorized and, when duly and validly executed, authenticated, issued and delivered in accordance with the Pooling and Servicing Agreement and sold to the Underwriters as provided herein, will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement. H. On the Closing Date, the ~~Initial Mortgage Loans and the Additional~~ Closing Date Mortgage Loans will conform in all material respects to the description thereof contained in the Prospectus and the representations and warranties contained in this Agreement will be true and correct in all material respects. On each Subsequent Transfer Date, the Subsequent Mortgage Loans will conform to the criteria set forth in the Prospectus Supplement. The representations and warranties of the Seller and the Company set out in the Pooling and Servicing Agreement are hereby made to the Underwriters as though set out herein, and at the dates specified therein, such representations and warranties were or will be true and correct in all material respects. I. The NovaStar Entities possess all material licenses, certificates, permits or other authorizations issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by it and as described in the Prospectus and there are no ~~proceedings,~~ proceedings pending or, to the best knowledge of the Seller and the Company, threatened, relating to the revocation or modification of any such license, certificate, permit or other authorization which singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect the business, operations, results of operations, financial position, income, property or assets of the NovaStar Entities. J. Any taxes, fees and other governmental charges in connection with the execution and delivery of the Agreements or the execution and issuance of the Offered Certificates have been or will be paid at or prior to the Closing Date. K. There has not been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the NovaStar Entities or their affiliates, taken as a whole, from ~~March~~ December 31, ~~2002~~2004. L. The Agreements will conform in all material respects to the descriptions thereof, if any, contained in the Prospectus. M. Neither the Company nor the Trust created by the Pooling and Servicing Agreement is an “investment company” within the meaning of such term under the Investment Company Act of 1940 (the “1940 Act”) and the rules and regulations of the Commission thereunder. The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended. N. Neither the Seller nor the Company is aware of (i) any request by the Commission for any further amendment of the Registration Statement or the Prospectus or for any additional information; (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose; or (iii) any notification with respect to the suspension of the qualification of the Offered Certificates for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.

Appears in 1 contract

Samples: Asset Purchase Agreement (Novastar Mortgage Funding Corp)

Representations and Warranties of the Seller and the Company. The ------------------------------------------------------------ Seller and the Company represent and warrant to, and covenant with, the Underwriters that: A. The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement (No. 333-~~84328~~50290) on Form S-3 for the registration under the Securities Act of 1933, as amended (the "Act"), of asset backed securities (issuable in series), which registration statement, as amended at the date hereof, has become effective. Such registration statement, as amended to the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the Act and complies in all other material respects with such Rule. The Company proposes to file with the Commission pursuant to Rule 424(b)(2) under the Act a supplement dated the date hereof to the prospectus dated ~~March 13~~February 16, ~~2002~~ 2001 relating to the Offered Certificates and the method of distribution thereof and has previously advised the Underwriters of all further information (financial and other) with respect to the Offered Certificates to be set forth therein. Such registration statement, including the exhibits thereto, as amended at the date hereof, is hereinafter called the "Registration Statement"; such prospectus dated ~~March 13~~February 16, ~~2002~~2001, in the form in which it will be filed with the Commission pursuant to Rule 424(b)(2) under the Act is hereinafter called the "Basic Prospectus"; such supplement dated the date hereof to the Basic Prospectus, in the form in which it will be filed with the Commission pursuant to Rule 424(b)(2) of the Act, is hereinafter called the "Prospectus Supplement"; and the Basic Prospectus and the Prospectus Supplement together are hereinafter called the "Prospectus." Any preliminary form of the Prospectus Supplement which has heretofore been filed pursuant to Rule 424 is hereinafter called a "Preliminary Prospectus Supplement." The Company will file with the Commission within fifteen days of the issuance of the Certificates a report on Form 8-K setting forth specific information concerning the related Mortgage Loans (the "8-K"). B. As of the date hereof, when the Registration Statement became effective, when the Prospectus Supplement is first filed pursuant to Rule 424(b)(2) under the Act, when, prior to the Closing Date (as defined below), any other amendment to the Registration Statement becomes effective, and when any supplement to the Prospectus is filed with the Commission, and at the Closing Date, (i) the Registration Statement, as amended as of any such time, and the Prospectus, as amended or supplemented as of any such time, will comply in all material respects with the applicable requirements of the Act and the rules thereunder and (ii) the Registration Statement, as amended as of any such time, did not and will not contain any untrue statement of a material fact and did not and will not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus, as amended or supplemented as of any such time, did not and will not contain an untrue statement of a material fact and did not and will not omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, -------- ------- that neither the Seller nor the Company makes any representation or warranty as to the information contained in or omitted from the Registration Statement or the Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with the Underwriter Information. C. Each of the Seller, the Company, NFI, NovaStar Capital, Inc. (the "Converted Loan Purchaser") and ~~NovaStar REMIC Financing Corporation ("NRFC")~~ NRFC (collectively, the "NovaStar Entities") is duly organized, validly existing and in good standing under the laws of the state of its respective incorporation, has full power and authority (corporate and other) to own its properties and conduct its business as now conducted by it, and as described in the Prospectus, and is duly qualified to do business in each jurisdiction in which it conducts business (to the extent such qualification is required by applicable law) or in which the conduct of its business requires such qualification except where the failure to be so qualified does not involve (i) a material risk to, or a material adverse effect on, the business, properties, financial position, operations or results of operations of such entity or (ii) any risk whatsoever as to the enforceability of any Mortgage Loan. D. There are no actions, proceedings or investigations pending, or, to the knowledge of the Seller or the Company, threatened, before any court, governmental agency or body or other tribunal: (i) asserting the invalidity of this Agreement, the Pooling and Servicing Agreement, each ISDA master agreement and related confirmation between Credit Suisse First Boston International and/or Xxxxxx Xxxxxxx Capital Services Inc. and the Novastar Entity party thereto, (the "Swap Agreements"), the assignment by the related Novstar Entity of each Swap Agreement (the "Assignment"), the interest rate cap agreement between the Trustee, on behalf of the Trust, and Citibank, N.A. New York (the "Cap Agreement"), the Mortgage Loan Purchase Agreement, dated as of ~~June~~ March 1, ~~2002~~ 2001 (the "Mortgage Loan Purchase Agreement"), between the Seller and the Company, the Converted Loan Purchase Agreement, dated as of ~~June~~ March 1, ~~2002~~ 2001 (the "Converted Loan Purchase Agreement"), among the Seller, as Servicer and as Originator, the Converted Loan Purchaser and the Trustee, and the REMIC Interests Sale Agreement, dated as of ~~June~~ March 1, ~~2002~~ 2001 (the "REMIC Sale Agreement," and collectively, the "Agreements") between the Company and NRFC, or the Offered Certificates; (ii) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by the Agreements; (iii) which may, individually or in the aggregate, materially and adversely affect the performance by the NovaStar Entities of their respective obligations under, or the validity or enforceability of, the Agreements or the Certificates; or (iv) which may affect adversely the federal income tax attributes of the Offered Certificates as described in the Prospectus. E. The execution and delivery by the NovaStar Entities of the Agreements are within their respective corporate power and have been, or will be, prior to the Closing Date duly authorized by all necessary corporate action on the part of the NovaStar Entities and the execution and delivery of such instruments, the consummation of the transactions therein contemplated and compliance with the provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute or any agreement or instrument to which the NovaStar Entities or any of their affiliates is a party or by which it or any of them is bound or to which any of the property of the NovaStar Entities or any of their affiliates is subject, the NovaStar Entities' charter or bylaws, or any order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities, any of their affiliates or any of their properties; and no consent, approval, authorization or order of, or filing with, any court or governmental agency or body or other tribunal is required for the consummation of the transactions contemplated by this Agreement or the Prospectus in connection with the issuance and sale of the Offered Certificates. Neither the NovaStar Entities nor any of their affiliates is a party to, bound by or in breach or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities or any of their affiliates, which materially and adversely affects, or may in the future materially and adversely affect, (i) the ability of the NovaStar Entities to perform their obligations under the Agreements or (ii) the business, operations, results of operations, financial position, income, properties or assets of the NovaStar Entities. F. This Agreement has been duly executed and delivered by the Seller and the Company, and the other Agreements will be duly executed and delivered by the NovaStar Entities, and each constitutes and will constitute the legal, valid and binding obligation of each of the NovaStar Entities enforceable in accordance with their respective terms, except as enforceability may be limited by (i) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (ii) general principles of equity, whether enforcement is sought in a proceeding at law or in equity. G. The Offered Certificates will conform in all material respects to the description thereof to be contained in the Prospectus and will be duly and validly authorized and, when duly and validly executed, authenticated, issued and delivered in accordance with the Pooling and Servicing Agreement and sold to the Underwriters as provided herein, will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement. H. On the Closing Date, the Initial Mortgage Loans ~~and the Additional Mortgage Loans~~ will conform in all material respects to the description thereof contained in the Prospectus and the representations and warranties contained in this Agreement will be true and correct in all material respects. On each Subsequent Transfer Date, the Subsequent Mortgage Loans will conform to the criteria set forth in the Prospectus Supplement. The representations and warranties of the Seller and the Company set out in the Pooling and Servicing Agreement are hereby made to the Underwriters as though set out herein, and at the dates specified therein, such representations and warranties were or will be true and correct in all material respects. I. The NovaStar Entities possess all material licenses, certificates, permits or other authorizations issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by it and as described in the Prospectus and there are no proceedings, pending or, to the best knowledge of the Seller and the Company, threatened, relating to the revocation or modification of any such license, certificate, permit or other authorization which singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect the business, operations, results of operations, financial position, income, property or assets of the NovaStar Entities. J. Any taxes, fees and other governmental charges in connection with the execution and delivery of the Agreements or the execution and issuance of the Offered Certificates have been or will be paid at or prior to the Closing Date. K. There has not been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the NovaStar Entities or their affiliates, taken as a whole, from March 311, ~~2002~~2001. L. The Agreements will conform in all material respects to the descriptions thereof, if any, contained in the Prospectus. M. Neither the Seller nor the Company is aware of (i) any request by the Commission for any further amendment of the Registration Statement or the Prospectus or for any additional information; (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose; or (iii) any notification with respect to the suspension of the qualification of the Offered Certificates for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Novastar Mortgage Funding Trust Series 2001-1)

Representations and Warranties of the Seller and the Company. The Seller and the Company represent and warrant to, and covenant with, the Underwriters that: A. The Company has filed with the Securities and Exchange Commission (the "“Commission"”) a registration statement (No. 333-~~84328~~108264) on Form S-3 for the registration under the Securities Act of 1933, as amended (the "“Act"”), of asset backed securities (issuable in series), which registration statement, as amended at the date hereof, has become effective. Such registration statement, as amended to the date of this Agreement, meets the requirements set forth in Rule 415(a)(1)(x) under the Act and complies in all other material respects with such Rule. The Company proposes to file with the Commission pursuant to Rule ~~424(b)(2~~424(b) under the Act a supplement dated the date hereof to the prospectus dated ~~March 13~~April 16, ~~2002~~ 2004 relating to the Offered Certificates and the method of distribution thereof and has previously advised the Underwriters of all further information (financial and other) with respect to the Offered Certificates to be set forth therein. Such registration statement, including the exhibits thereto, as amended at the date hereof, is hereinafter called the "“Registration Statement"”; such prospectus dated ~~March 13~~April 16, ~~2002~~2004, in the form in which it will be filed with the Commission pursuant to Rule ~~424(b)(2~~424(b) under the Act is hereinafter called the "“Basic Prospectus"”; such supplement dated the date hereof to the Basic Prospectus, in the form in which it will be filed with the Commission pursuant to Rule ~~424(b)(2~~424(b) of the Act, is hereinafter called the "“Prospectus Supplement"”; and the Basic Prospectus and the Prospectus Supplement together are hereinafter called the "“Prospectus." ” Any preliminary form of the Prospectus Supplement which has heretofore been filed pursuant to Rule 424 is hereinafter called a "“Preliminary Prospectus Supplement." ” The Company will file with the Commission within fifteen days of the issuance of the Certificates a report on Form 8-K setting forth specific information concerning the related Mortgage Loans (the "“8-K"”). B. As of the date hereof, when the Registration Statement became effective, when the Prospectus Supplement is first filed pursuant to Rule ~~424(b)(2~~424(b) under the Act, when, prior to the Closing Date (as defined below), any other amendment to the Registration Statement becomes effective, and when any supplement to the Prospectus is filed with the Commission, and at the Closing Date, (i) the Registration Statement, as amended as of any such time, and the Prospectus, as amended or supplemented as of any such time, will comply in all material respects with the applicable requirements of the Act and the rules thereunder and (ii) the Registration Statement, as amended as of any such time, did not and will not contain any untrue statement of a material fact and did not and will not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus, as amended or supplemented as of any such time, did not and will not contain an untrue statement of a material fact and did not and will not omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that neither the Seller nor the Company makes any representation or warranty as to the information contained in or omitted from the Registration Statement or the Prospectus or any amendment thereof or supplement thereto in reliance upon and in conformity with the Underwriter Information. C. Each of the Seller, the Company, NFI, NovaStar Capital, Inc. (the "“Converted Loan Purchaser"”) and NovaStar REMIC Financing Corporation ("“NRFC"”) (collectively, the "“NovaStar Entities"”) is duly organized, validly existing and in good standing under the laws of the state of its respective incorporation, has full power and authority (corporate and other) to own its properties and conduct its business as now conducted by it, and as described in the Prospectus, and is duly qualified to do business in each jurisdiction in which it conducts business (to the extent such qualification is required by applicable law) or in which the conduct of its business requires such qualification except where the failure to be so qualified does not involve (i) a material risk to, or a material adverse effect on, the business, properties, financial position, operations or results of operations of such entity or (ii) any risk whatsoever as to the enforceability of any Mortgage Loan. D. There are no actions, proceedings or investigations pending, or, to the knowledge of the Seller or the Company, threatened, before any court, governmental agency or body or other tribunal: (i) asserting the invalidity of this Agreement, the Pooling and Servicing Agreement, the Insurance Agreement, the Indemnification Agreement, each ISDA master agreement and related confirmation between ~~Credit Suisse First Boston International and/or Xxxxxx Xxxxxxx~~ Greenwich Capital ~~Services~~ Derivatives, Inc. or Wachovia Bank, N.A. and the ~~Novastar~~ related NovaStar Entity that is a party thereto, (the "“Swap Agreements"”), the assignment by the related ~~Novstar~~ NovaStar Entity of each Swap Agreement (the "“Assignment~~"), the interest rate cap agreement between the Trustee, on behalf of the Trust, and Citibank, N.A. New York (the "Cap Agreement"~~”), the Mortgage Loan Purchase Agreement, dated as of June 1, ~~2002~~ 2004 (the "“Mortgage Loan Purchase Agreement"”), between the Seller and the Company, the Converted Loan Purchase Agreement, dated as of June 1, ~~2002~~ 2004 (the "“Converted Loan Purchase Agreement"”), among the Seller, as Servicer and as Originator, the Converted Loan Purchaser and the Trustee, and the REMIC Interests Sale Agreement, dated as of June 1, ~~2002~~ 2004 (the "“REMIC Sale Agreement," ” and collectively, the "“Agreements"”) between the Company and NRFC, or the Offered Certificates; (ii) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by the Agreements; (iii) which may, individually or in the aggregate, materially and adversely affect the performance by the NovaStar Entities of their respective obligations under, or the validity or enforceability of, the Agreements or the Certificates; or (iv) which may affect adversely the federal income tax attributes of the Offered Certificates as described in the Prospectus. E. The execution and delivery by the NovaStar Entities of the Agreements are within their respective corporate power and have been, or will be, prior to the Closing Date duly authorized by all necessary corporate action on the part of the NovaStar Entities and the execution and delivery of such instruments, the consummation of the transactions therein contemplated and compliance with the provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute or any agreement or instrument to which the NovaStar Entities or any of their affiliates is a party or by which it or any of them is bound or to which any of the property of the NovaStar Entities or any of their affiliates is subject, the NovaStar Entities' ’ charter or bylaws, or any order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities, any of their affiliates or any of their properties; and no consent, approval, authorization or order of, or filing with, any court or governmental agency or body or other tribunal is required for the consummation of the transactions contemplated by this Agreement or the Prospectus in connection with the issuance and sale of the Offered Certificates. Neither the NovaStar Entities nor any of their affiliates is a party to, bound by or in breach or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order, rule or regulation of any court, governmental agency or body or other tribunal having jurisdiction over the NovaStar Entities or any of their affiliates, which materially and adversely affects, or may in the future materially and adversely affect, (i) the ability of the NovaStar Entities to perform their obligations under the Agreements or (ii) the business, operations, results of operations, financial position, income, properties or assets of the NovaStar Entities. F. This Agreement has been duly executed and delivered by the Seller and the Company, and the other Agreements will be duly executed and delivered by the NovaStar Entities, and each constitutes and will constitute the legal, valid and binding obligation of each of the NovaStar Entities enforceable in accordance with their respective terms, except as enforceability may be limited by (i) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization or other similar laws affecting the enforcement of the rights of creditors and (ii) general principles of equity, whether enforcement is sought in a proceeding at law or in equity. G. The Offered Certificates will conform in all material respects to the description thereof to be contained in the Prospectus and will be duly and validly authorized and, when duly and validly executed, authenticated, issued and delivered in accordance with the Pooling and Servicing Agreement and sold to the Underwriters as provided herein, will be validly issued and outstanding and entitled to the benefits of the Pooling and Servicing Agreement. H. On the Closing Date, the ~~Initial Mortgage Loans and the Additional~~ Closing Date Mortgage Loans will conform in all material respects to the description thereof contained in the Prospectus and the representations and warranties contained in this Agreement will be true and correct in all material respects. On each Subsequent Transfer Date, the Subsequent Mortgage Loans will conform to the criteria set forth in the Prospectus Supplement. The representations and warranties of the Seller and the Company set out in the Pooling and Servicing Agreement are hereby made to the Underwriters as though set out herein, and at the dates specified therein, such representations and warranties were or will be true and correct in all material respects. I. The NovaStar Entities possess all material licenses, certificates, permits or other authorizations issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by it and as described in the Prospectus and there are no ~~proceedings,~~ proceedings pending or, to the best knowledge of the Seller and the Company, threatened, relating to the revocation or modification of any such license, certificate, permit or other authorization which singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect the business, operations, results of operations, financial position, income, property or assets of the NovaStar Entities. J. Any taxes, fees and other governmental charges in connection with the execution and delivery of the Agreements or the execution and issuance of the Offered Certificates have been or will be paid at or prior to the Closing Date. K. There has not been any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the NovaStar Entities or their affiliates, taken as a whole, from March 31, ~~2002~~2004. L. The Agreements will conform in all material respects to the descriptions thereof, if any, contained in the Prospectus. M. Neither the Company nor the Trust created by the Pooling and Servicing Agreement is an “investment company” within the meaning of such term under the Investment Company Act of 1940 (the “1940 Act”) and the rules and regulations of the Commission thereunder. The Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended. N. Neither the Seller nor the Company is aware of (i) any request by the Commission for any further amendment of the Registration Statement or the Prospectus or for any additional information; (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose; or (iii) any notification with respect to the suspension of the qualification of the Offered Certificates for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.

Appears in 1 contract

Samples: Underwriting Agreement (Novastar Mortgage Funding Trust Series 2004-2)

Common use of Representations and Warranties of the Seller and the Company Clause in Contracts