Representations and Warranties of the Seller and the Servicer. Each of the Seller and the Servicer represents and warrants to the Purchaser and the Indenture Trustee as of the date of this Agreement, on each Weekly Reporting Date, on each Asset Increase Closing Date (except as otherwise specified below) in respect of any Series of Debt Obligations, and on any other date on which these representations and warranties are specified to be repeated in any Related Program Agreement in respect of any Series of Debt Obligations, that: (a) it is (i) a corporation duly organized and validly existing under the laws of its jurisdiction of incorporation; and (ii) duly qualified to carry on business in each jurisdiction in which the failure to be so qualified would reasonably be expected to have a Material Adverse Effect; (b) it has full power and capacity to enter into this Agreement and the other Program Agreements to which it is party and to do all acts and things as are required of or contemplated to be done by it hereunder or thereunder; (c) it has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the other Program Agreements to which it is party and to do all acts and things as are required of or contemplated to be done by it hereunder or thereunder; (d) there are no actions, suits or proceedings pending or to the knowledge of any officer of the Seller, threatened against or affecting the Seller or any of its undertakings and assets at law, in equity or before any arbitrator or before or by any governmental department, body, commission, board, bureau, agency or instrumentality having jurisdiction in the premises which would reasonably be expected to have a Material Adverse Effect and the Seller is in compliance with all Applicable Laws except such non-compliance as would not reasonably be expected to have a Material Adverse Effect; (e) this Agreement has been duly executed and delivered by it and constitutes a legally binding obligation of the Seller enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally and to equitable principles of general application (regardless of whether enforcement is sought in a proceeding at law or in equity); (f) the execution and delivery of this Agreement and the other Program Agreements to which it is party and compliance with their terms and conditions will not (i) result in a violation of the constating documents or by-laws of the Seller; (ii) result in a violation of any Applicable Law; (iii) result in a breach of, or constitute a default under, any loan agreement, indenture, limited partnership agreement, trust deed or any other agreement or instrument to which the Seller is a party or by which it is bound which would reasonably be expected to have a Material Adverse Effect; or (iv) require any approval or consent of, or any notice to or filing with, any governmental authority or agency having jurisdiction except such as has already been given, filed or obtained, as the case may be; (g) no default has occurred and is outstanding under any loan agreement, indenture, limited partnership agreement, trust deed or any other agreement or instrument to which the Seller is a party or by which it is bound which would reasonably be expected to have a Material Adverse Effect; (h) its principal place of business, chief executive office and registered office are located at the addresses set forth under its name on the signature pages hereto and the offices where it keeps all Records held by it are located at the addresses set out in Schedule C hereto or such other addresses as the Seller shall from time to time notify the Purchaser; (i) it is not a non-resident of Canada within the meaning of the ITA; (j) as of the applicable Asset Purchase Cut-Off Date or Asset Designation Cut-Off Date, as the case may be, each Obligor Account forming part of the Assigned Obligor Account Assets in respect of such Asset Purchase Cut-Off Date or Asset Designation Cut-Off Date is an Eligible Obligor Account; (k) all information, exhibits, documents, books, records or reports, including each Asset Purchase Notice, furnished to the Purchaser or the Indenture Trustee by or on behalf of the Seller (or known to the Seller in the case of any document furnished by or on behalf of the Seller but not prepared by the Seller or one of its affiliates) in connection with the transactions contemplated by this Agreement and the other Program Agreements is accurate and complete in all material respects; (l) no Amortization Event or Servicer Termination Event or Related Significant Event, or event which with the giving of notice of the passage of time or both, would be an Amortization Event or Servicer Termination Event or Related Significant Event, has occurred and is continuing; (m) each financial report and financial statement of the Seller delivered to the Purchaser or the Indenture Trustee pursuant to or in connection with this Agreement or any other Program Agreement has been prepared in accordance with generally accepted accounting principles, consistently applied, and Applicable Law and fairly and accurately presents the financial information and the financial condition and results of operations of the Seller contained therein as at their respective preparation dates; (n) it is not insolvent and has not (i) admitted its inability to pay its debts generally as they become due or failed to pay its debts generally as they become due; (ii) proposed a compromise or arrangement to its creditors; (iii) had any petition for a receiving order or bankruptcy filed against it; (iv) consented to have itself declared bankrupt or wound up; (v) consented to have a receiver, liquidator or trustee appointed over any part of its assets; (vi) had any encumbrancer take possession of any of its property, which taking of possession could reasonably be expected to have a material adverse effect on its ability to carry out its obligations under the Program Agreements; (vii) had any execution or distress become enforceable or become levied upon any of its property, which event contemplated in this clause could reasonably be expected to have a material adverse effect on its ability of to carry out its obligations under the Program Agreements; or (viii) had any material unsatisfied judgment outstanding against it for more than fifteen (15) days; and (o) since the date of the most recent financial statements of the Seller furnished to the Purchaser and the Indenture Trustee, there has been no change in the business, assets, affairs or operations of the Seller which could reasonably be expected to have a Material Adverse Effect. The representations and warranties made above shall survive the execution and delivery of this Agreement and each Asset Purchase notwithstanding any investigations or examinations which may be made by or on behalf of the Purchaser and the Purchaser shall be deemed to have relied on such representations and warranties in the making or funding, as applicable, of each Asset Purchase.
Appears in 1 contract
Samples: Receivables Sale and Servicing Agreement (CURO Group Holdings Corp.)
Representations and Warranties of the Seller and the Servicer. Each of the Seller and Servicer (interchangeably, for purposes of this Section 3.02 only, the Servicer represents "Company"), each represents, warrants and warrants covenants to the Purchaser and the Indenture Trustee that as of the date of this Agreement, on each Weekly Reporting Date, on each Asset Increase Closing Date (except as otherwise specified below) in respect of any Series of Debt Obligations, and on any other date on which these representations and warranties are specified to be repeated in any Related Program Agreement in respect of any Series of Debt Obligations, thatfollows:
(a) it The Seller is (i) a corporation national banking association duly organized and validly existing under the laws of its the United States. The Servicer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation; . The Company has all licenses necessary to carry out its business as now being conducted, and (ii) duly is licensed and qualified to carry on transact business in and is in good standing under the laws of each jurisdiction state in which any Mortgaged Property is located or is otherwise exempt under applicable law from such licensing or qualification or is otherwise not required under applicable law to effect such licensing or qualification and no demand for such licensing or qualification has been made upon the failure Company by any such state, and in any event the Company is in compliance with the laws of any such state to be so qualified would reasonably be expected the extent necessary to have a Material Adverse Effectensure the enforceability of each Mortgage Loan and, as to the Servicer, the servicing of the Mortgage Loans in accordance with the terms of this Agreement;
(b) it The Company has the full power and capacity authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan and to execute, deliver and perform, and to enter into and consummate all transactions contemplated by this Agreement and the other Program Agreements to which it is party related Purchase Price and Terms Letter and to do all acts and things conduct its business as are required of or contemplated to be done by it hereunder or thereunder;
(c) it presently conducted; the Company has taken all necessary action to authorize duly authorized the execution, delivery and performance of this Agreement and the other Program Agreements to which it is party and to do all acts and things as are required of or any agreements contemplated to be done by it hereunder or thereunder;
(d) there are no actionshereby, suits or proceedings pending or to the knowledge of any officer of the Seller, threatened against or affecting the Seller or any of its undertakings and assets at law, in equity or before any arbitrator or before or by any governmental department, body, commission, board, bureau, agency or instrumentality having jurisdiction in the premises which would reasonably be expected to have a Material Adverse Effect and the Seller is in compliance with all Applicable Laws except such non-compliance as would not reasonably be expected to have a Material Adverse Effect;
(e) this Agreement has been duly executed and delivered by it this Agreement and constitutes a legally the related Purchase Price and Terms Letter, and any agreements contemplated hereby, and this Agreement and the related Purchase Price and Terms Letter and each Assignment of Mortgage to the Purchaser and any agreements contemplated hereby, constitute the legal, valid and binding obligation obligations of the Seller Company, enforceable against it in accordance with its their respective terms, subject to applicable except as such enforceability may be limited by bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally moratorium, reorganization and to similar laws, and by equitable principles affecting the enforceability of general application (regardless the rights of whether enforcement is sought creditors; and all requisite corporate action has been taken by the Company to make this Agreement , the related Purchase Price and Terms Letter and all agreements contemplated hereby valid and binding upon the Company in a proceeding at law or in equity)accordance with their terms;
(fc) Neither the origination or acquisition of the Mortgage Loans by the Seller, the execution and delivery of this Agreement, the related Purchase Price and Terms Letter, the sale of the Mortgage Loans to the Purchaser, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement and the other Program Agreements to which it is party related Purchase Price and compliance Terms Letter will conflict with their terms and conditions will not (i) or result in a violation breach of any of the constating documents terms, conditions or provisions of the Company's charter or by-laws of the Seller; (ii) or materially conflict with or result in a violation material breach of any Applicable Law; (iii) result in a breach ofof the terms, conditions or constitute a default under, provisions of any loan agreement, indenture, limited partnership agreement, trust deed legal restriction or any other agreement or instrument to which the Seller Company is now a party or by which it is bound which would reasonably be expected to have a Material Adverse Effect; or (iv) require any approval or consent ofbound, or constitute a default or result in an acceleration under any notice of the foregoing, or result in the material violation of any law, rule, regulation, order, judgment or decree to which the Company or filing with, any governmental authority its property is subject or agency having jurisdiction except such as has already been given, filed or obtained, as impair the case may bevalue of the Mortgage Loans;
(gd) There is no default has occurred and is outstanding under action, suit, proceeding or investigation pending or threatened against the Company which, either in any loan agreementone instance or in the aggregate, indenturemay result in any material adverse change in the business, limited partnership agreementoperations, trust deed financial condition, properties or assets of the Company, or in any other agreement material impairment of the right or instrument ability of the Company to which carry on its business substantially as now conducted, or in any material liability on the Seller is a party part of the Company, or by which it is bound which would reasonably draw into question the validity of this Agreement or the Mortgage Loans or of any action taken or to be expected contemplated herein, or which would be likely to have a Material Adverse Effectimpair materially the ability of the Company to perform under the terms of this Agreement;
(he) its principal place No consent, approval, authorization or order of businessany court or governmental agency or body is required for the execution, chief executive office delivery and registered office are located at performance by the addresses set forth under its name on Company of or compliance by the signature pages hereto Company with this Agreement and the offices where it keeps all Records held by it are located at the addresses set out in Schedule C hereto or such other addresses as the Seller shall from time to time notify the Purchaserrelated Purchase Price and Terms Letter, except for consents, approvals, authorizations and orders which have been obtained;
(if) it is not a non-resident The consummation of Canada within the meaning of the ITA;
(j) as of the applicable Asset Purchase Cut-Off Date or Asset Designation Cut-Off Date, as the case may be, each Obligor Account forming part of the Assigned Obligor Account Assets in respect of such Asset Purchase Cut-Off Date or Asset Designation Cut-Off Date is an Eligible Obligor Account;
(k) all information, exhibits, documents, books, records or reports, including each Asset Purchase Notice, furnished to the Purchaser or the Indenture Trustee by or on behalf of the Seller (or known to the Seller in the case of any document furnished by or on behalf of the Seller but not prepared by the Seller or one of its affiliates) in connection with the transactions contemplated by this Agreement and the other Program Agreements related Purchase Price and Terms Letter are in the ordinary course of business of the Company, which is accurate in the business of selling and complete servicing Mortgage Loans, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Company pursuant to this Agreement and the related Purchase Price and Terms Letter are not subject to bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
(g) The origination and servicing practices with respect to each Mortgage Note and Mortgage have been legal and in accordance with applicable laws and regulations, and in all material respectsrespects proper and prudent in the mortgage origination and servicing business. The Servicer further represents and warrants that: with respect to escrow deposits and payments that the Servicer is entitled to collect, all such payments are in the possession of, or under the control of, the Servicer or its delegate, and there exist no deficiencies in connection therewith for which customary arrangements for repayment thereof have not been made; all escrow payments have been collected and are being maintained in full compliance with applicable state and federal law and the provisions of the related Mortgage Note and Mortgage; as to any Mortgage Loan that is the subject of an escrow, escrow of funds is not prohibited by applicable law and has been established in an amount sufficient to pay for every escrowed item that remains unpaid and has been assessed but is not yet due and payable; no escrow deposits or other charges or payments due under the Mortgage Note have been capitalized under any Mortgage or the related Mortgage Note; all Mortgage Interest Rate adjustments have been made in strict compliance with state and federal law and the terms of the related Mortgage Note; and any interest required to be paid pursuant to state and local law has been properly paid and credited;
(h) The Seller has not used selection procedures that identified the Mortgage Loans as being less desirable or valuable than other comparable mortgage loans in the Company's portfolio at the Cut-off Date;
(i) The Seller will treat the sale of the Mortgage Loans to the Purchaser as a sale for reporting and accounting purposes and for federal income tax purposes;
(j) The Company is an approved seller/servicer of residential mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac and HUD, with such facilities, procedures and personnel necessary for the sound servicing of such mortgage loans. The Company is duly qualified, licensed, registered and otherwise authorized under all applicable federal, state and local laws, and regulations, meets the minimum capital requirements, if applicable, set forth by the OCC, and is in good standing to sell mortgage loans to and service mortgage loans for Xxxxxx Mae or Xxxxxxx Mac and no event has occurred which would make the Company unable to comply with eligibility requirements or which would require notification to either Xxxxxx Mae or Xxxxxxx Mac;
(k) The Company does not believe, nor does it have any cause or reason to believe, that it cannot perform each and every covenant contained in this Agreement and the related Purchase Price and Terms Letter applicable to it. The Seller is solvent and the sale of the Mortgage Loans will not cause the Seller to become insolvent. The sale of the Mortgage Loans is not undertaken with the intent to hinder, delay or defraud any of the Seller's creditors;
(l) no Amortization Event Neither this Agreement nor any statement, tape, diskette, form, report or Servicer Termination Event or Related Significant Eventother document prepared by, or event which on behalf of, the Company pursuant to this Agreement, the related Purchase Price and Terms Letter or in connection with the giving of notice of the passage of time transactions contemplated hereby, contains or both, would will contain any statement that is or will be an Amortization Event inaccurate or Servicer Termination Event or Related Significant Event, misleading in any material respect. The Seller has occurred prudently originated and is continuingunderwritten each Mortgage Loan;
(m) each financial report The Servicer acknowledges and financial statement agrees that the Servicing Fee represents reasonable compensation for performing such services and that the entire Servicing Fee shall be treated by the Servicer, for accounting and tax purposes, as compensation for the servicing and administration of the Seller Mortgage Loans pursuant to this Agreement;
(n) The Company has delivered to the Purchaser or financial statements as to its last two complete fiscal years. All such financial statements fairly present the Indenture Trustee pursuant to or pertinent results of operations and changes in connection with this Agreement or any other Program Agreement has financial position for each of such periods and the financial position at the end of each such period of the Company and its subsidiaries and have been prepared in accordance with generally accepted accounting principlesGAAP consistently applied throughout the periods involved, consistently appliedexcept as set forth in the notes thereto. There has been no change in the business, and Applicable Law and fairly and accurately presents the operations, financial information and the financial condition and results of operations condition, properties or assets of the Seller contained therein as at their respective preparation dates;
(n) it is not insolvent and has not (i) admitted its inability to pay its debts generally as they become due or failed to pay its debts generally as they become due; (ii) proposed a compromise or arrangement to its creditors; (iii) had any petition for a receiving order or bankruptcy filed against it; (iv) consented to have itself declared bankrupt or wound up; (v) consented to have a receiver, liquidator or trustee appointed over any part Company since the date of its assets; (vi) had any encumbrancer take possession of any of its property, which taking of possession could reasonably be expected to the Company's financial statements that would have a material adverse effect on its ability to carry out perform its obligations under this Agreement or the Program Agreements; related Purchase Price and Terms Letter;
(viio) had The Company has not dealt with any execution broker, investment banker, agent or distress become enforceable other person that may be entitled to any commission or become levied upon compensation in connection with the sale of the Mortgage Loans;
(p) Neither this Agreement nor any statement, report or other document furnished or to be furnished pursuant to this Agreement or in connection with the transactions contemplated hereby contains any untrue statement of its propertyfact or omits to state a fact necessary to make the statements contained therein, in light of the circumstances under which event contemplated in this clause could reasonably be expected to have a material adverse effect on its ability of to carry out its obligations under the Program Agreements; or (viii) had any material unsatisfied judgment outstanding against it for more than fifteen (15) dayssuch statements are made, not misleading; and
(oq) since The Company is a member of MERS in good standing, and will comply in all material respects with the date rules and procedures of MERS in connection with the servicing of the most recent financial statements of the Seller furnished to the Purchaser and the Indenture Trustee, there has been no change in the business, assets, affairs or operations of the Seller which could reasonably be expected to have a Material Adverse Effect. The representations and warranties made above shall survive the execution and delivery of this Agreement and each Asset Purchase notwithstanding any investigations or examinations which may be made by or on behalf of the Purchaser and the Purchaser shall be deemed to have relied on MERS Mortgage Loans for as long as such representations and warranties in the making or funding, as applicable, of each Asset PurchaseMortgage Loans are registered with MERS.
Appears in 1 contract
Samples: Seller's Purchase, Warranties and Servicing Agreement (Gs Mortgage Securities Corp)
Representations and Warranties of the Seller and the Servicer. Each of the Seller and Servicer (interchangeably, for purposes of this Section 3.02 only, the Servicer represents "Company"), each represents, warrants and warrants covenants to the Purchaser and the Indenture Trustee that as of the date of this Agreement, on each Weekly Reporting Date, on each Asset Increase Closing Date (except as otherwise specified below) in respect of any Series of Debt Obligations, and on any other date on which these representations and warranties are specified to be repeated in any Related Program Agreement in respect of any Series of Debt Obligations, thatfollows:
(a) it The Seller is (i) a corporation national banking association duly organized and validly existing under the laws of its the United States. The Servicer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation; . The Company has all licenses necessary to carry out its business as now being conducted, and (ii) duly is licensed and qualified to carry on transact business in and is in good standing under the laws of each jurisdiction state in which any Mortgaged Property is located or is otherwise exempt under applicable law from such licensing or qualification or is otherwise not required under applicable law to effect such licensing or qualification and no demand for such licensing or qualification has been made upon the failure Company by any such state, and in any event the Company is in compliance with the laws of any such state to be so qualified would reasonably be expected the extent necessary to have a Material Adverse Effectensure the enforceability of each Mortgage Loan and, as to the Servicer, the servicing of the Mortgage Loans in accordance with the terms of this Agreement;
(b) it The Company has the full power and capacity authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan and to execute, deliver and perform, and to enter into and consummate all transactions contemplated by this Agreement and the other Program Agreements to which it is party related Purchase Price and Terms Letter and to do all acts and things conduct its business as are required of or contemplated to be done by it hereunder or thereunder;
(c) it presently conducted; the Company has taken all necessary action to authorize duly authorized the execution, delivery and performance of this Agreement and the other Program Agreements to which it is party and to do all acts and things as are required of or any agreements contemplated to be done by it hereunder or thereunder;
(d) there are no actionshereby, suits or proceedings pending or to the knowledge of any officer of the Seller, threatened against or affecting the Seller or any of its undertakings and assets at law, in equity or before any arbitrator or before or by any governmental department, body, commission, board, bureau, agency or instrumentality having jurisdiction in the premises which would reasonably be expected to have a Material Adverse Effect and the Seller is in compliance with all Applicable Laws except such non-compliance as would not reasonably be expected to have a Material Adverse Effect;
(e) this Agreement has been duly executed and delivered by it this Agreement and constitutes a legally the related Purchase Price and Terms Letter, and any agreements contemplated hereby, and this Agreement and the related Purchase Price and Terms Letter and each Assignment of Mortgage to the Purchaser and any agreements contemplated hereby, constitute the legal, valid and binding obligation obligations of the Seller Company, enforceable against it in accordance with its their respective terms, subject to applicable except as such enforceability may be limited by bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally moratorium, reorganization and to similar laws, and by equitable principles affecting the enforceability of general application (regardless the rights of whether enforcement is sought creditors; and all requisite corporate action has been taken by the Company to make this Agreement , the related Purchase Price and Terms Letter and all agreements contemplated hereby valid and binding upon the Company in a proceeding at law or in equity)accordance with their terms;
(fc) Neither the origination or acquisition of the Mortgage Loans by the Seller, the execution and delivery of this Agreement, the related Purchase Price and Terms Letter, the sale of the Mortgage Loans to the Purchaser, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement and the other Program Agreements to which it is party related Purchase Price and compliance Terms Letter will conflict with their terms and conditions will not (i) or result in a violation breach of any of the constating documents terms, conditions or provisions of the Company's charter or by-laws of the Seller; (ii) or materially conflict with or result in a violation material breach of any Applicable Law; (iii) result in a breach ofof the terms, conditions or constitute a default under, provisions of any loan agreement, indenture, limited partnership agreement, trust deed legal restriction or any other agreement or instrument to which the Seller Company is now a party or by which it is bound which would reasonably be expected to have a Material Adverse Effect; or (iv) require any approval or consent ofbound, or constitute a default or result in an acceleration under any notice of the foregoing, or result in the material violation of any law, rule, regulation, order, judgment or decree to which the Company or filing with, any governmental authority its property is subject or agency having jurisdiction except such as has already been given, filed or obtained, as impair the case may bevalue of the Mortgage Loans;
(gd) There is no default has occurred and is outstanding under action, suit, proceeding or investigation pending or threatened against the Company which, either in any loan agreementone instance or in the aggregate, indenturemay result in any material adverse change in the business, limited partnership agreementoperations, trust deed financial condition, properties or assets of the Company, or in any other agreement material impairment of the right or instrument ability of the Company to which carry on its business substantially as now conducted, or in any material liability on the Seller is a party part of the Company, or by which it is bound which would reasonably draw into question the validity of this Agreement or the Mortgage Loans or of any action taken or to be expected contemplated herein, or which would be likely to have a Material Adverse Effectimpair materially the ability of the Company to perform under the terms of this Agreement;
(he) its principal place No consent, approval, authorization or order of businessany court or governmental agency or body is required for the execution, chief executive office delivery and registered office are located at performance by the addresses set forth under its name on Company of or compliance by the signature pages hereto Company with this Agreement and the offices where it keeps all Records held by it are located at the addresses set out in Schedule C hereto or such other addresses as the Seller shall from time to time notify the Purchaserrelated Purchase Price and Terms Letter, except for consents, approvals, authorizations and orders which have been obtained;
(if) it is not a non-resident The consummation of Canada within the meaning of the ITA;
(j) as of the applicable Asset Purchase Cut-Off Date or Asset Designation Cut-Off Date, as the case may be, each Obligor Account forming part of the Assigned Obligor Account Assets in respect of such Asset Purchase Cut-Off Date or Asset Designation Cut-Off Date is an Eligible Obligor Account;
(k) all information, exhibits, documents, books, records or reports, including each Asset Purchase Notice, furnished to the Purchaser or the Indenture Trustee by or on behalf of the Seller (or known to the Seller in the case of any document furnished by or on behalf of the Seller but not prepared by the Seller or one of its affiliates) in connection with the transactions contemplated by this Agreement and the other Program Agreements related Purchase Price and Terms Letter are in the ordinary course of business of the Company, which is accurate in the business of selling and complete servicing Mortgage Loans, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Company pursuant to this Agreement and the related Purchase Price and Terms Letter are not subject to bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
(g) The origination and servicing practices with respect to each Mortgage Note and Mortgage have been legal and in accordance with applicable laws and regulations, and in all material respectsrespects proper and prudent in the mortgage origination and servicing business. The Servicer further represents and warrants that: with respect to escrow deposits and payments that the Servicer is entitled to collect, all such payments are in the possession of, or under the control of, the Servicer or its delegate, and there exist no deficiencies in connection therewith for which customary arrangements for repayment thereof have not been made; all escrow payments have been collected and are being maintained in full compliance with applicable state and federal law and the provisions of the related Mortgage Note and Mortgage; as to any Mortgage Loan that is the subject of an escrow, escrow of funds is not prohibited by applicable law and has been established in an amount sufficient to pay for every escrowed item that remains unpaid and has been assessed but is not yet due and payable; no escrow deposits or other charges or payments due under the Mortgage Note have been capitalized under any Mortgage or the related Mortgage Note; all Mortgage Interest Rate adjustments have been made in strict compliance with state and federal law and the terms of the related Mortgage Note; and any interest required to be paid pursuant to state and local law has been properly paid and credited;
(h) The Seller has not used selection procedures that identified the Mortgage Loans as being less desirable or valuable than other comparable mortgage loans in the Company's portfolio at the Cut-off Date;
(i) The Seller will treat the sale of the Mortgage Loans to the Purchaser as a sale for reporting and accounting purposes and for federal income tax purposes;
(j) The Company is an approved seller/servicer of residential mortgage loans for Fannie Mae or Freddie Mac and HUX, xxxh xxch fxxxxxxxes, procedures and personnel necessary for the sound servicing of such mortgage loans. The Company is duly qualified, licensed, registered and otherwise authorized under all applicable federal, state and local laws, and regulations, meets the minimum capital requirements, if applicable, set forth by the OCC, and is in good standing to sell mortgage loans to and service mortgage loans for Fannie Mae or Freddie Mac and no xxxxx has occxxxxx xhich would make the Company unable to comply with eligibility requirements or which would require notification to either Fannie Mae or Freddie Mac;
(k) Thx Xxxxxny does not believe, nor does it have any cause or reason to believe, that it cannot perform each and every covenant contained in this Agreement and the related Purchase Price and Terms Letter applicable to it. The Seller is solvent and the sale of the Mortgage Loans will not cause the Seller to become insolvent. The sale of the Mortgage Loans is not undertaken with the intent to hinder, delay or defraud any of the Seller's creditors;
(l) no Amortization Event Neither this Agreement nor any statement, tape, diskette, form, report or Servicer Termination Event or Related Significant Eventother document prepared by, or event which on behalf of, the Company pursuant to this Agreement, the related Purchase Price and Terms Letter or in connection with the giving of notice of the passage of time transactions contemplated hereby, contains or both, would will contain any statement that is or will be an Amortization Event inaccurate or Servicer Termination Event or Related Significant Event, misleading in any material respect. The Seller has occurred prudently originated and is continuingunderwritten each Mortgage Loan;
(m) each financial report The Servicer acknowledges and financial statement agrees that the Servicing Fee represents reasonable compensation for performing such services and that the entire Servicing Fee shall be treated by the Servicer, for accounting and tax purposes, as compensation for the servicing and administration of the Seller Mortgage Loans pursuant to this Agreement;
(n) The Company has delivered to the Purchaser or financial statements as to its last two complete fiscal years. All such financial statements fairly present the Indenture Trustee pursuant to or pertinent results of operations and changes in connection with this Agreement or any other Program Agreement has financial position for each of such periods and the financial position at the end of each such period of the Company and its subsidiaries and have been prepared in accordance with generally accepted accounting principlesGAAP consistently applied throughout the periods involved, consistently appliedexcept as set forth in the notes thereto. There has been no change in the business, and Applicable Law and fairly and accurately presents the operations, financial information and the financial condition and results of operations condition, properties or assets of the Seller contained therein as at their respective preparation dates;
(n) it is not insolvent and has not (i) admitted its inability to pay its debts generally as they become due or failed to pay its debts generally as they become due; (ii) proposed a compromise or arrangement to its creditors; (iii) had any petition for a receiving order or bankruptcy filed against it; (iv) consented to have itself declared bankrupt or wound up; (v) consented to have a receiver, liquidator or trustee appointed over any part Company since the date of its assets; (vi) had any encumbrancer take possession of any of its property, which taking of possession could reasonably be expected to the Company's financial statements that would have a material adverse effect on its ability to carry out perform its obligations under this Agreement or the Program Agreements; related Purchase Price and Terms Letter;
(viio) had The Company has not dealt with any execution broker, investment banker, agent or distress become enforceable other person that may be entitled to any commission or become levied upon compensation in connection with the sale of the Mortgage Loans;
(p) Neither this Agreement nor any statement, report or other document furnished or to be furnished pursuant to this Agreement or in connection with the transactions contemplated hereby contains any untrue statement of its propertyfact or omits to state a fact necessary to make the statements contained therein, in light of the circumstances under which event contemplated in this clause could reasonably be expected to have a material adverse effect on its ability of to carry out its obligations under the Program Agreements; or (viii) had any material unsatisfied judgment outstanding against it for more than fifteen (15) dayssuch statements are made, not misleading; and
(oq) since The Company is a member of MERS in good standing, and will comply in all material respects with the date rules and procedures of MERS in connection with the servicing of the most recent financial statements of the Seller furnished to the Purchaser and the Indenture Trustee, there has been no change in the business, assets, affairs or operations of the Seller which could reasonably be expected to have a Material Adverse Effect. The representations and warranties made above shall survive the execution and delivery of this Agreement and each Asset Purchase notwithstanding any investigations or examinations which may be made by or on behalf of the Purchaser and the Purchaser shall be deemed to have relied on MERS Mortgage Loans for as long as such representations and warranties in the making or funding, as applicable, of each Asset PurchaseMortgage Loans are registered with MERS.
Appears in 1 contract
Representations and Warranties of the Seller and the Servicer. Each of the Seller and Servicer (interchangeably, for purposes of this Section 3.02 only, the Servicer represents "Company"), each represents, warrants and warrants covenants to the Purchaser and the Indenture Trustee that as of the date of this Agreement, on each Weekly Reporting Date, on each Asset Increase Closing Date (except as otherwise specified below) in respect of any Series of Debt Obligations, and on any other date on which these representations and warranties are specified to be repeated in any Related Program Agreement in respect of any Series of Debt Obligations, thatfollows:
(a) it The Seller is (i) a corporation national banking association duly organized and validly existing under the laws of its the United States. The Servicer is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation; . The Company has all licenses necessary to carry out its business as now being conducted, and (ii) duly is licensed and qualified to carry on transact business in and is in good standing under the laws of each jurisdiction state in which any Mortgaged Property is located or is otherwise exempt under applicable law from such licensing or qualification or is otherwise not required under applicable law to effect such licensing or qualification and no demand for such licensing or qualification has been made upon the failure Company by any such state, and in any event the Company is in compliance with the laws of any such state to be so qualified would reasonably be expected the extent necessary to have a Material Adverse Effectensure the enforceability of each Mortgage Loan and, as to the Servicer, the servicing of the Mortgage Loans in accordance with the terms of this Agreement;
(b) it The Company has the full power and capacity authority and legal right to hold, transfer and convey each Mortgage Loan, to sell each Mortgage Loan and to execute, deliver and perform, and to enter into and consummate all transactions contemplated by this Agreement and the other Program Agreements to which it is party related Purchase Price and Terms Letter and to do all acts and things conduct its business as are required of or contemplated to be done by it hereunder or thereunder;
(c) it presently conducted; the Company has taken all necessary action to authorize duly authorized the execution, delivery and performance of this Agreement and the other Program Agreements to which it is party and to do all acts and things as are required of or any agreements contemplated to be done by it hereunder or thereunder;
(d) there are no actionshereby, suits or proceedings pending or to the knowledge of any officer of the Seller, threatened against or affecting the Seller or any of its undertakings and assets at law, in equity or before any arbitrator or before or by any governmental department, body, commission, board, bureau, agency or instrumentality having jurisdiction in the premises which would reasonably be expected to have a Material Adverse Effect and the Seller is in compliance with all Applicable Laws except such non-compliance as would not reasonably be expected to have a Material Adverse Effect;
(e) this Agreement has been duly executed and delivered by it this Agreement and constitutes a legally the related Purchase Price and Terms Letter, and any agreements contemplated hereby, and this Agreement and the related Purchase Price and Terms Letter and each Assignment of Mortgage to the Purchaser and any agreements contemplated hereby, constitute the legal, valid and binding obligation obligations of the Seller Company, enforceable against it in accordance with its their respective terms, subject to applicable except as such enforceability may be limited by bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally moratorium, reorganization and to similar laws, and by equitable principles affecting the enforceability of general application (regardless the rights of whether enforcement is sought creditors; and all requisite corporate action has been taken by the Company to make this Agreement , the related Purchase Price and Terms Letter and all agreements contemplated hereby valid and binding upon the Company in a proceeding at law or in equity)accordance with their terms;
(fc) Neither the origination or acquisition of the Mortgage Loans by the Seller, the execution and delivery of this Agreement, the related Purchase Price and Terms Letter, the sale of the Mortgage Loans to the Purchaser, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement and the other Program Agreements to which it is party related Purchase Price and compliance Terms Letter will conflict with their terms and conditions will not (i) or result in a violation breach of any of the constating documents terms, conditions or provisions of the Company's charter or by-laws of the Seller; (ii) or materially conflict with or result in a violation material breach of any Applicable Law; (iii) result in a breach ofof the terms, conditions or constitute a default under, provisions of any loan agreement, indenture, limited partnership agreement, trust deed legal restriction or any other agreement or instrument to which the Seller Company is now a party or by which it is bound which would reasonably be expected to have a Material Adverse Effect; or (iv) require any approval or consent ofbound, or constitute a default or result in an acceleration under any notice of the foregoing, or result in the material violation of any law, rule, regulation, order, judgment or decree to which the Company or filing with, any governmental authority its property is subject or agency having jurisdiction except such as has already been given, filed or obtained, as impair the case may bevalue of the Mortgage Loans;
(gd) There is no default has occurred and is outstanding under action, suit, proceeding or investigation pending or threatened against the Company which, either in any loan agreementone instance or in the aggregate, indenturemay result in any material adverse change in the business, limited partnership agreementoperations, trust deed financial condition, properties or assets of the Company, or in any other agreement material impairment of the right or instrument ability of the Company to which carry on its business substantially as now conducted, or in any material liability on the Seller is a party part of the Company, or by which it is bound which would reasonably draw into question the validity of this Agreement or the Mortgage Loans or of any action taken or to be expected contemplated herein, or which would be likely to have a Material Adverse Effectimpair materially the ability of the Company to perform under the terms of this Agreement;
(he) its principal place No consent, approval, authorization or order of businessany court or governmental agency or body is required for the execution, chief executive office delivery and registered office are located at performance by the addresses set forth under its name on Company of or compliance by the signature pages hereto Company with this Agreement and the offices where it keeps all Records held by it are located at the addresses set out in Schedule C hereto or such other addresses as the Seller shall from time to time notify the Purchaserrelated Purchase Price and Terms Letter, except for consents, approvals, authorizations and orders which have been obtained;
(if) it is not a non-resident The consummation of Canada within the meaning of the ITA;
(j) as of the applicable Asset Purchase Cut-Off Date or Asset Designation Cut-Off Date, as the case may be, each Obligor Account forming part of the Assigned Obligor Account Assets in respect of such Asset Purchase Cut-Off Date or Asset Designation Cut-Off Date is an Eligible Obligor Account;
(k) all information, exhibits, documents, books, records or reports, including each Asset Purchase Notice, furnished to the Purchaser or the Indenture Trustee by or on behalf of the Seller (or known to the Seller in the case of any document furnished by or on behalf of the Seller but not prepared by the Seller or one of its affiliates) in connection with the transactions contemplated by this Agreement and the other Program Agreements related Purchase Price and Terms Letter are in the ordinary course of business of the Company, which is accurate in the business of selling and complete servicing Mortgage Loans, and the transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by the Company pursuant to this Agreement and the related Purchase Price and Terms Letter are not subject to bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
(g) The origination and servicing practices with respect to each Mortgage Note and Mortgage have been legal and in accordance with applicable laws and regulations, and in all material respectsrespects proper and prudent in the mortgage origination and servicing business. The Servicer further represents and warrants that: with respect to escrow deposits and payments that the Servicer is entitled to collect, all such payments are in the possession of, or under the control of, the Servicer or its delegate, and there exist no deficiencies in connection therewith for which customary arrangements for repayment thereof have not been made; all escrow payments have been collected and are being maintained in full compliance with applicable state and federal law and the provisions of the related Mortgage Note and Mortgage; as to any Mortgage Loan that is the subject of an escrow, escrow of funds is not prohibited by applicable law and has been established in an amount sufficient to pay for every escrowed item that remains unpaid and has been assessed but is not yet due and payable; no escrow deposits or other charges or payments due under the Mortgage Note have been capitalized under any Mortgage or the related Mortgage Note; all Mortgage Interest Rate adjustments have been made in strict compliance with state and federal law and the terms of the related Mortgage Note; and any interest required to be paid pursuant to state and local law has been properly paid and credited;
(h) The Seller has not used selection procedures that identified the Mortgage Loans as being less desirable or valuable than other comparable mortgage loans in the Company's portfolio at the Cut-off Date;
(i) The Seller will treat the sale of the Mortgage Loans to the Purchaser as a sale for reporting and accounting purposes and for federal income tax purposes;
(j) The Company is an approved seller/servicer of residential mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac and HUD, with such facilities, procedures and personnel necessary for the sound servicing of such mortgage loans. The Company is duly qualified, licensed, registered and otherwise authorized under all applicable federal, state and local laws, and regulations, meets the minimum capital requirements, if applicable, set forth by the OCC, and is in good standing to sell mortgage loans to and service mortgage loans for Xxxxxx Mae or Xxxxxxx Mac and no event has occurred which would make the Company unable to comply with eligibility requirements or which would require notification to either Xxxxxx Mae or Xxxxxxx Mac;
(k) The Company does not believe, nor does it have any cause or reason to believe, that it cannot perform each and every covenant contained in this Agreement and the related Purchase Price and Terms Letter applicable to it. The Seller is solvent and the sale of the Mortgage Loans will not cause the Seller to become insolvent. The sale of the Mortgage Loans is not undertaken with the intent to hinder, delay or defraud any of the Seller's creditors;
(l) no Amortization Event Neither this Agreement nor any statement, tape, diskette, form, report or Servicer Termination Event or Related Significant Eventother document prepared by, or event which on behalf of, the Company pursuant to this Agreement, the related Purchase Price and Terms Letter or in connection with the giving of notice of the passage of time transactions contemplated hereby, contains or both, would will contain any statement that is or will be an Amortization Event inaccurate or Servicer Termination Event or Related Significant Event, misleading in any material respect. The Seller has occurred prudently originated and is continuingunderwritten each Mortgage Loan;
(m) each financial report The Servicer acknowledges and financial statement agrees that the Servicing Fee represents reasonable compensation for performing such services and that the entire Servicing Fee shall be treated by the Servicer, for accounting and tax purposes, as compensation for the servicing and administration of the Seller Mortgage Loans pursuant to this Agreement;
(n) The Company has delivered to the Purchaser or financial statements as to its last two complete fiscal years. All such financial statements fairly present the Indenture Trustee pursuant to or pertinent results of operations and changes in connection with this Agreement or any other Program Agreement has financial position for each of such periods and the financial position at the end of each such period of the Company and its subsidiaries and have been prepared in accordance with generally accepted accounting principlesGAAP consistently applied throughout the periods involved, consistently appliedexcept as set forth in the notes thereto. There has been no change in the business, and Applicable Law and fairly and accurately presents the operations, financial information and the financial condition and results of operations condition, properties or assets of the Seller contained therein as at their respective preparation dates;
(n) it is not insolvent and has not (i) admitted its inability to pay its debts generally as they become due or failed to pay its debts generally as they become due; (ii) proposed a compromise or arrangement to its creditors; (iii) had any petition for a receiving order or bankruptcy filed against it; (iv) consented to have itself declared bankrupt or wound up; (v) consented to have a receiver, liquidator or trustee appointed over any part Company since the date of its assets; (vi) had any encumbrancer take possession of any of its property, which taking of possession could reasonably be expected to the Company's financial statements that would have a material adverse effect on its ability to carry out perform its obligations under this Agreement or the Program Agreements; (vii) had any execution or distress become enforceable or become levied upon any of its property, which event contemplated in this clause could reasonably be expected to have a material adverse effect on its ability of to carry out its obligations under the Program Agreements; or (viii) had any material unsatisfied judgment outstanding against it for more than fifteen (15) days; andrelated Purchase Price and Terms Letter;
(o) since The Company has not dealt with any broker, investment banker, agent or other person that may be entitled to any commission or compensation in connection with the date sale of the most recent financial Mortgage Loans;
(p) Neither this Agreement nor any statement, report or other document furnished or to be furnished pursuant to this Agreement or in connection with the transactions contemplated hereby contains any untrue statement of fact or omits to state a fact necessary to make the statements contained therein, in light of the Seller furnished to the Purchaser and the Indenture Trusteecircumstances under which such statements are made, there has been no change in the business, assets, affairs or operations of the Seller which could reasonably be expected to have a Material Adverse Effect. The representations and warranties made above shall survive the execution and delivery of this Agreement and each Asset Purchase notwithstanding any investigations or examinations which may be made by or on behalf of the Purchaser and the Purchaser shall be deemed to have relied on such representations and warranties in the making or funding, as applicable, of each Asset Purchasenot misleading.
Appears in 1 contract
Samples: Seller's Purchase, Warranties and Servicing Agreement (Gs Mortgage Securities Corp)
